MEDIWAKE AND OTHERS v. DAYANANDA DISSANAYAKE, COMMISSIONER OF ELECTIONS AN

014-SLLR-SLLR-2001-V-1-MEDIWAKE-AND-OTHERS-v.-DAYANANDA-DISSANAYAKE-COMMISSIONER-OF-ELECTIONS-AN.pdf


MEDIWAKE AND OTHERS
v.DAYANANDA DISSANAYAKE, COMMISSIONER OFELECTIONS AND OTHERS
SUPREME COURTFERNANDO, J. •
WADUGODAPITIYA, J. ANDISMAIL, J.
SC APPLICATION NO.412/99
17th OCTOBER, 14™ AND, 16™ NOVEMBER
AND 4™ AND 5th DECEMBER, 2000
Fundamental rights – Provincial Council Elections – Poll In the KandyDistrict, Provincial Council, Central Province – Provincial CouncilElections Act, No. 2 of 1988 as amended – Unlawful poll at 23 pollingstations – Section 46A of the Act – Failure to declare the poll void andto appoint a re-poll – Sections 46A(2) and 46(7)(a) of the Act – Articles12(1) and 14(l)(a) of the Constitution.
The four petitioners were registered voters of the Kandy District, whichis one of the three Districts of the Central Province. The election of Membersto the Provincial Council of that Province was held on 06.05.1998 underthe Provincial Council Elections Act, No. 2 of 1988 as amended (the Act.).The petitioners were members of the United National Party (the U.N.R)while the 1st petitioner was also a candidate for the Kandy District; the 4thpetitioner was a polling agent.
The Is1 and the 2nd respondents were the Commissioner of Elections andthe Returning Officer, Kandy District, respectively; the 3rd respondent isthe Attorney-General; the 4th – lO1* respondents were the GeneralSecretaries of the Political Parties and the 11th respondent was the groupleader of an Independent Group, that contested the said Provincial Councilelection. The 12th – 16th respondents (12th – IS* respondents being RA.candidates) were persons against whom specific allegations were made bythe petitioners.
The petitioners alleged that various incidents had occurred on electionday at twenty five named polling stations in that District, including the
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premature closure of one polling station as well as ballot stuffing, drivingaway polling agents and Intimidation at several others: and that the 1strespondent by his failure to declare the poll at such polling stations void(except at one polling station) under section 46A(2) of the Act, as amendedby Act, No. 35 of 1988 and to appoint a re-poll thereat under section46A(7)(a) Infringed their fundamental rights. Leave to proceed was grantedIn respect of the alleged Infringement of Articles 12( 1) and 14( 1 Ha) of theConstitution.
It was established that ballot stuffing took place at twelve polling stations:that at eleven other polling stations there were Incidents of harrassmentand chasing away of UNP polling agents by means of violence or threateningof violence; and that the 12“1 to 15th respondents were actively Involved infour Incidents.
The 1st respondent annulled the poll at the Polwatta polling station, butdid not appoint a re-poll.
Held :
Section 46A(l)(b) of the Act requires a genuine poll, continuinguninterrupted from beginning to the end, and compels theCommissioner to make a qualitative assessment as to whether the pollwas free, equal and secret.
Even before the count on 06.04.1999 there was prtmaJacie evidencethat ballot stuffing and chasing away polling agents had taken place;and there was no proper poll in law. The 1st and 2nd respondents hadsufficient notice of those incidents. However, the Is’ respondent failedto make adequate Inquiries in respect of those incidents and decidewhether there was a genuine poll. On the available material the 1s’respondent should have annulled the poll not only at Polwatte but alsoat the other twenty two polling stations.
Per Fernando, J.
“It Is true that section 46(A)(2) does not require an automatic annulmentof the poll for each and every non-compliance. The word "may" confirmsthat the 1st respondent has a discretionary power. However, that Is a powercoupled with a duty; whenever it appears that the proved non-compliance
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has Interfered with a free, equal and secret ballot, that discretion must beexercised.”
The Irregularities disclosed at the aforesaid twenty three pollingstations would have affected the result of the election for the KandyDistrict; as such the Is* respondent should have ordered a re-poll atthose polling stations in terms of section 46A(7)(a).
Per Fernando, J.
“The fact that the party position might have remained unchangeddoes not mean that the “result" was not affected."
The right to a free, equal and secret ballot Is an Integral part of thecitizen’s freedom of expression, when he exercises that freedomthrough his right to vote. It makes no difference whether that right Isconstitutional or statutory. That right Is an essential part of the freedomof expression recognized by Article 14(1 )(a) of the Constitution,especially in view of Sri Lanka's obligations under Article 25 of theInternational Covenant on Civil and Political Rights and Article 27( 15)of the Constitution.
Per Fernando, J.
“The citizen's right to vote includes the right to freely choose hisrepresentatives, through a genuine election which guarantees the freeexpression of the will of the electors: not just his own. Therefore not onlyis a citizen entitled himself to vote at a free, equal and secret poll, but healso has a right to a genuine election guaranteeing the free expression ofthe will of the entire electorate to which he belongs.”
The failure of the Is1 respondent to ensure a genuine, free, equal andsecret poll – a poll which gave true expression to the will of all theelectors – and following upon that, his failure to annul the poll, and toorder a re-poll at all twenty three polling stations aforesaid, infringedthe right of the petitioners to the freedom of expression under Article14(l)(a), and to equality and equal protection under Article 12(1).
The 12th to 15th respondents abused their statutory right to enter thepolling station, by chasing away polling agents and procured an
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executive or administrative Injustice. As such they were properlyjoined as respondents, but no relief was prayed against them. Henceno relief against them is ordered.
The petitioners are not precluded from Invoking the jurisdiction ofthe court under Article 126 in view of the availability of the remedy ofan election petition which is a limited right which can be filed only bya candidate; only upon the limited grounds set out in section 92( 1)and for redress which may be granted under section 96 of die Act.
Cases referred to :
Edrlsinha v. Dissanayake SC No. 265/99 SCM 23.3.99
Bandaranaike v. Premadasa (1992) 2 Sri L.R. 1 at 54
Karunatilleke v. Dissanayake (1999) 1 Sri L.R. 157
Arnaratunga v. Sirimal (1993) 1 Sri L.R. 264
Fatz v. Attorney-General (1995) 1 Sri L.R. 372 at 383, 403-4
Don Alexander u. Fernando (1948) 49 NLR 202
APPLICATION for relief for infringement of fundamental rights.
Shibly Aziz, PC. with A.P. Niles for petitioners.
Saleem MarsooJ, PC, Additional Solicitor-General, with L.A. Gnanadasari
Deputy Solicitor-General, U. Egalahewa, State Counsel, Suren de Silva,
State Counsel and R. Gunatllake, State Counsel for 1st to 3rd respondents.
Sanjeewa Jayawardena for 16th respondent.
Cur. adv. uult.
April 3, 2001FERNANDO, J..
The four Petitioners were, at all material times, registeredvoters of the Kandy District, which is one of the three Districtsof the Central Province. The election of members of the Provincial
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Council of that Province was held on 6.4.99 under the ProvincialCouncil Elections Act, No. 2 of 1988, as amended by Act, No.35 of 1988 (“the Act”). The Petitioners were members of theUnited National Party (“UNP”), while the 1st Petitioner was alsoa candidate for the Kandy District; the 4th Petitioner was a pollingagent.
The Petitioners alleged that various incidents had occurredon election day at 25 named polling stations In that District.These included the premature closure of one polling station, aswell as ballot-stuffing, driving away polling agents, andintimidation at several others.
The Petitioners pleaded that:
“. . . it was the duty of each Presiding Officer of the relevantpolling stations to act in terms of sections 31 to 46 of (theAct], and to keep order in the polling station, and to makeit possible for the polling agents to function freely, and toensure that ballots were issued properly, and to ensure thatonly persons entitled to vote were allowed to cast votes”;
“. . . it was also the duty of each Presiding Officer … toforthwith inform the 2nd Respondent Returning Officer ofthe District of the incidents mentioned above, and it wasthe duty of the 2nd Respondent to then inform the 1stRespondent Commissioner of Elections, in terms of section46A(1) of the Act . . .”;
“upon receiving such information, it was the duty of the 1stRespondent to ascertain the truth of the information, andto declare the poll at such polling station void, in terms ofthe same section”;
“the Presiding Officers and/or the 2nd Respondent and/orthe 1st Respondent have failed to comply with their dutiesunder the said section. In fact, the purported ballots of all
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the abovementioned polling stations have been taken intoaccount in declaring the final results”; and
“ if the poll was properly conducted . . . the final resultsfor the District of Kandy would have been affected.”
The Petitioners prayed for declarations that:
their “sovereign right of franchise under Article 4(e) … .has been denied and/or violated in respect of the conductof the poll at (the aforesaid] polling stations,” and
their fundamental rights guaranteed by Articles 12(1). 14(1)(a), 14(1) (c) and 14( 1) (g) had been denied and/or violated-
by the failure of the ls! and/or 2nd Respondents toconduct and/or cause to be conducted a proper poll atthe aforesaid polling stations, and
by the failure of the 1st Respondent to declare void thepoll at those polling stations and to order a repoll;
They also asked for an order directing the 1st Respondentto declare void the poll, and to order a re-poll, at those pollingstations, but did not pray for compensation.
The 3rd Respondent is the Attorney-General; the 4th to 10thRespondents are the General Secretaries of the political partieswhich contested the election; the 11th Respondent was the GroupLeader of an independent group; and the 12th to 16lhRespondents are persons against whom specific allegations weremade by the Petitioners, although no relief was claimed againstthem.
Leave to proceed was granted on 20.5.99 in respect of thealleged infringement of Articles 12(1) and 14(1) (a). The lslRespondent was directed to produce the Senior Presiding
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Officer’s (“SPO’s”) journal in respect of the 25 named pollingstations.
SECTION 46A OF THE ACTThe decision of this case turns largely on the interpretationand implementation of section 46A, the marginal note to whichrefers to “disturbances at polling stations”;
“46A( 1) Where due to the occurrence of events of such anature –
it is not possible to commence the poll at a polling stationat the hour fixed for the commencement of the poll; or
the poll at such polling station commences at the hour fixedfor the opening of the poll but cannot be continued untilthe hour fixed for the closing of the poll; or
any of the ballot boxes assigned to the polling station cannotbe delivered to the counting officer,
the presiding officer . . . shall forthwith inform the returningofficer who shall in turn inform the Commissioner.
46A(2) On receipt of an information under subsection (1) inrelation to a polling station . . . the Commissioner may, aftermaking such inquiries as he may deem necessary to ascertainthe truth of such information by order published in the Gazette,declare the poll at such polling station void.
46A(5) The returning officer shall, from the statements undersubsection (7) of section 51 furnished to him by all the countingofficers, add up and ascertain the number of votes polled byeach recognized political party and independent group, and thenumber of preferences secured by each candidate nominatedby each such party or group at the election for suchadministrative district other than the votes polled at the polling
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station in respect of which an Order under subsection (2) hasbeen made and shall forthwith forward a statement to that effectto the Commissioner.
46A(7) (a) Where the Commissioner is of the opinion, on receiptof a statement under subsection (5), that the result of theelection for such administrative district will be affected bythe failure to count the votes polled, or the votes which wouldhave been polled, at the polling station in respect of which anorder under subsection (2) has been made, he shall forthwithappoint a fresh date for taking a poll at such polling station,[emphasis added]
In view of “the experience gathered in the conduct of theElections to North Western Province Provincial Council”, the Is1Respondent, by letter dated 27.2.99, had asked the Secretaryto the President to “bring to the notice of Her Excellency thePresident immediately” certain urgent amendments needed tosection 46A (1) – namely, the addition after paragraph (c) of fiveother situations:
if it was not possible to conduct the poll due to any reasonbeyond the control of the Presiding Officer;
if one or more polling agents are chased out during thepoll;
non-arrival of the polling party at the polling station due toobstruction on the way;
if any disturbance of the peace at the polling station makesit impossible to take the poll; and
if there is any forcible stuffing of ballot papers.
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There was no response. Shortly thereafter, the 1stRespondent issued several circulars and instructions toall Returning Officers. The following are some relevantextracts:
Circular dated 17.3.99 regarding instructions to be issuedto SPO’s:“4. SPO should guarantee
the freedom of the elector to cast his vote in anunhindered manner,
equality in treatment of all contestants, and
prevent discrimination or privileges to any party orgroup.
Attention is drawn to section 46A and the record of detailsof persons, vehicles, incidents, threats on staff or agents, damageto or misuse of any ballot papers, damage to ballot boxes shouldbe recorded [sicj. In such incidents the serial numbers, numberof ballot papers lost or stuffed into ballot boxes should berecorded. Messages should be sent to Returning Officer,Commissioner of Elections immediately thereafter for adetermination. For this purpose use Part IV of the Journal.
38. With the experience of incidents taken place [sic] at theNorth Western Province Provincial Council Elections, it isnecessary to take precautionary measures in anticipating similarsituations or any other incidents. The following steps shouldbe taken in order to safeguard the proper management of thePolling Station. In the event of unauthorised persons in severednumber or in group [sic] forcibly enter into the polling stationand intimidate polling staff and forcibly remove ballot papersand stuffing or create any other violence or disturbances at the
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polling station, immediately SPO should intimate police officerson duty and send |a) message regarding this to R.O. and theSenior Police Officer over the phone . . . SPO should send hisJPO [for the] purpose of sending this telephone message and …make a journal entry in this regard in Part IV of the SPO’s journal."
Circular dated 17.3.99 regarding “Points to be emphasisedat SPOO Class”:“10. Section 46A – Details of persons, vehicles used, the incidentand security provided, theft of ballot papers, serial Nos. of ballotpapers lost or stuffed into box by force. Your recommendationon the annulment oj the poll." [emphasis added throughout)
[A repetition of the last sentence of (38) above.]
Circular on “Annulment of a poll at a polling station – section46A”:“1. Your kind attention is drawn to section 46A [of the Act]under which the poll at a polling station can be annulled, dueto disturbances which could affect the result of the poll.
& 4. [The need to record and report incidents was stressed.]
5. Although a decision may at the furthest depend on thewritten report of the SPOO, which may reach you only on hisreturn at the close of poll, the other sources of information, ifproperly alerted, may furnish the information to you muchearlier. You are kindly requested to ensure that any suchinformation is transmitted to me immediately as it is receivedby you.”
These instructions are referable to the 1st Respondent’spower under section 129 (b) "to issue such directions as hemay deem necessary to ensure active execution of the provisionsof the Act.”
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A valuable procedural safeguard was Introduced by the 1stRespondent. The SPO’s journal consisted of four Parts; Part I,Record of proceedings; Part II, Log entries and complaints; andPart III, Written complaints by candidates etc, and Reports andmessages by SPO to RO, ARO, etc (to be maintained in triplicate).A more detailed Part IV was substituted, consisting of a form(which I will refer to as the “section 46A (2) form”), which wasone method whereby SPO’s could fulfil their duty, under section46A (1), of informing the Returning Officer. Not only did it facilitatethe orderly and systematic recording and reporting of incidentsof the kind referred to in the above Circulars, but it also providedfor the SPO either to certify that no incident had occurredwarranting the annulment of the election under section 46A (2)or to recommend that the election be declared null and void onaccount of incidents to be specified. Part IV was issued as aseparate booklet in all three languages, in duplicate; and theinstructions given to the SPO were that the original was to bedetached and enclosed in one envelope (marked “Z”); theduplicate (together with Parts I, II and III) in another envelope(marked “M (2)”); and both handed over to the Returning Officer.
The English version of the section 46 A (2) form is as follows:
SENIOR PRESIDING OFFICER’S (S.RO’S) JOURNALPART IVSection 46A (2) of the Provincial Councils Elections Act. No.
2 of 1988 as amended by the Elections (Special Provisions)Act, No. 35 of 1988.
Disturbances at the Polling Station
From the Presiding Officer of the …. polling division situatedin the polling district of…. to the Returning Officer of… .
District.
Poll commenced at 7.00 a.m./Poll could not commence at
the scheduled time. Poll commenced atReasons
for such delay are enumerated below.
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* Poll continued until 4.00 p.m./Poll could not continue until
the scheduled time. Reasons for such termination at
are enumerated below.
* Ballot boxes could not be handed over to the ReturningOfficer, for the following reasons.
Particulars of Security Staff at the Polling Station:
NameDesignation & Identification Number
01.
02.
03.
04.
1 hereby certify that no incident has occurred warrantingthe annulment of the election under Section 46A (2).
I recommend that the election at this polling station bedeclared null and void under Section 46A (2), due to thefollowing reasons. The incidents are briefly set out belowin the order in which they have occurred.
la incident
Time of occurrence
No. of votes cast as at that time
Names/identity of the persons who are responsible for thedisturbances as far as I am aware/have learnt.
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* Delete whichever Is InapplicableRegistered number/s of the vehicle/s used:
Particulars including the numbers of the ballot papers whichwere forcibly stuffed into the ballot boxes.
Serial Noto Serial No
Were any ballot papers brought into the polling station fromoutside, marked and stuffed into the ballot box of the pollingstation?
The incident/s referred to above is/are briefly indicated below.
Injuries or any other inconveniences to the staff:
Damages to or loss of election articles etc.:
Reasons for the failure of the security staff for not Ibeingl ableto prevent this incident as I perceive, are as follows:
1 certify that I reported this incident to
the Field Assistant Returning Officer at
Returning Officer at
Police Patrol at
and that I reported so in writing/Verbally/through messenger.
02— incident
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03*3 incident
Particulars of any incident where agents of political parties/independent groups were chased away from the pollingstation or where any person caused harassment to them(including the time such incident occurred): (In submitting theseparticulars regarding agents, the name/s of the party/parties orindependent group/s represented, should be stated).
[Signature, name, designation and officialaddress of Presiding Officer] [emphasis added]
Not only was the Is* Respondent conscious of theshortcomings of the North-Western Province Provincial Councilelections, but he was reminded of public and judicial concernabout possible repetitions. Upon a complaint of imminentinfringement (in respect of the poll to be conducted on 6.4.99),he tendered to this Court a set of the letters, circulars andinstructions issued by the Inspector-General of Police andhimself. Nevertheless, three other deficiencies were brought tohis notice, by Counsel and by the Court: the need for a sternwarning that swift and appropriate action would be takenagainst any Police officers found to be in intentional derelictionof their duties, the lack of adequate provision to ensure the safetyand freedom of voters, counting agents, and, particularly, pollingagents, and the use of vehicles, personnel and weaponsprovided by the State for political activities connected ivithelections. This Court expressed “confidence that these threematters will also be given due consideration by theCommissioner of Elections and the Inspector-General of Police.”(Edrisinha u. Dtssanayake).111
THE FACTSThe 1st and 2nd Respondents filed affidavits nearly fourmonths later in which they admitted certain incidents:
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Replying to the Petitioners’ allegation that at about 10.00a.m. a mob of about 200 armed Peoples’ Alliance (“PA”)supporters stormed the Ratnajothi KV polling station No. 15,and threatened the UNP polling agents, and snatched ballotpapers, and stuffed about 500 ballots In the ballot box, theystated that “45 ballot papers commencing from 192455-192500 and 49 ballot papers commencing from 192601-192650 totalling 94 ballot papers forcibly stuffed by unknownpersons [at that polling station] were identified and excludedfrom the count…” The SPO mentioned this incident in Part 111,in a “message” form, but all three copies remained in the journal.
Replying to the Petitioners’ allegation that at about 1.20 p.m.PA supporters stormed the Udupitya Muslim KV polling stationNo. 40 armed with pistols and a bomb, and threatened the UNPpolling agents, and snatched a parcel of ballots, and cast them,they stated that “48 ballot papers commencing from serialNo.439652-439700 forcibly stuffed by unknown persons [atthat polling station] were identified and excluded from the count.. The SPO recorded in the journal that a crowd of 30 personscame at 1.20 p.m., and that this was reported to the ARO andthe RO, but made no mention of ballot-stuffing.
In respect of these two incidents, it must be noted that thesection 46A (2) forms were not produced, and that the 1st and2nd Respondents have not produced any document by whichthey were informed of the ballot-stuffing, and the relevant serialnumbers. Further, although reference has been made to 45, 49and 48 ballot papers, the serial numbers given actually cover46, 50 and 49 ballot papers. 3
(3)They added that “several ballot papers were removed from
counting in certain other polling stations such asin
which incidents were reported by the respective Senior PresidingOfficers.” They named nine polling stations (which are not amongthe 25 named by the Petitioners). They produced neither thedocuments by which these incidents were reported, nor therelevant section 46A (2) forms. Further, it is difficult to assumethat they meant that those were the only other incidents, because
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“such as" tends to suggest that there were other incidents aswell.
Replying to the Petitioners' allegation that at about 12.30p.m.a mob of PA supporters stormed the Polwatta KV polling stationNo. 19 and began to stuff the ballot boxes, whereupon thePresiding Officer closed the polling station, and sealed the ballotbox, they stated that “the poll |at that polling station] wasannulled under section 46A . . ." They did not explain why the1st Respondent did not order a re-poll under section 46A (7).
Replying to the Petitioners’ allegation that a mob of about50 PA supporters stormed the [Wattegama] polling station No.34, threatened the UNP polling agents, snatched ballot papersand stuffed about 1,000 ballots, in consequence of which acomplaint was made at the Wattegama Police station and anagent was treated at the Wattegama Government hospital, theystated that no incidents of stuffing ballots were reported, butthat a report was submitted to the 2nd Respondent by the SPOat 9.10 a.m. regarding an incident of harassment to the UNPpolling agents; that the report was submitted to the Police; andthat the 2nd Respondent was unaware of the action taken bythe Police.
As for the Petitioners’ other allegations, they stated that theywere unaware of those incidents, and that information regardingthem “will have to be obtained from the Senior Presiding Officers’journals . . . which have been sealed after the close of the poll. .
. . and kept in safe custody.”
At the hearing the sealed packets (in the ”M(2)’’ envelopes)in respect of 23 of the 25 polling stations named by thePetitioners were opened by the Registrar of this Court in thepresence of Counsel. (The packet for Wattegama had not beenbrought to Court because of a mls-description by the Petitioners,but no reason was given for not bringing the Polwattadocuments.) The “Z” envelopes containing the originalcommunication by the SPO’s to the Returning Officer were notproduced by the 1st and 2nd Respondents. However, that could
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not have made any difference because each “M (2)” envelope(which was entitled “SPO’s Journal") should have containedcopies of all four Parts of the SPO’s journal.
Those journals contained entries regarding IncidentsNos (1) and (2) above, and the following incidents at ten otherpolling stations.
Kalugaloya KV polling station No. 17. The Petitioners allegedthat a mob of armed PA supporters led by the 15th Respondent,a PA candidate, stormed the Police station, threatened the 4thPetitioner, a UNP polling agent, and assaulted him with thePresiding Officer's chair; the agent sustained a fracture of thehand, left the polling station, and was admitted to hospital. TheSPO’s journal has three relevant entries: one in Part 1, to theeffect that at 7.40 a.m. the 15th Respondent came, and assaultedand chased away the UNP polling agents, and another in PartIII that a crowd assaulted and chased Way the UNP pollingagents. The 15th Respondent did not file an affidavit denyingthe 4th Petitioner’s affidavit.
Maha Assedduma KV polling station No. 37. The Petitionersalleged that at about 3.30 p.rn. the 13th Respondent, a PAcandidate, accompanied by several armed persons in Policeuhiform and a mob entered the polling station, threatened UNPagents and the Presiding Officer, and snatched and cast ballots.Part 1 of the journal contains two entries by the SPO: that until
p.m. there was no disturbance at the polling station andvoting took place very peacefully; and that at about 3.30 p.m.unknown persons asked him to allow ballots to be forcibly cast,and because of his refusal he too was severely threatened. Hemade no entry about the situation thereafter. The 13lhRespondent did not file an affidavit denying the polling agent’saffidavit.
Megodagama KV polling station No. 17. The Petitionersalleged that at about 11.00 a.m. a mob of about 50 armed PAsupporters stormed the polling station, threatened the UNPpolling agents, snatched ballot papers and stuffed about 300
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ballots in the ballot box. The SPO's journal contains twocomplaints: one recorded at 11.30 a.m. to the effect that theUNP polling agent says he is leaving because outsiders werecasting ballots; and the other at 11.55 a.m. that a named UNPcandidate states that his agent left because of threats and thatnear the entrance to the polling station there were eight vehiclesand a crowd of about 70 outsiders, who had come to cast illegalvotes.
Pahala Yatawara polling station No. 18. The Petitionersalleged that at about 11.00 a.m. a mob of about 50 armed PAsupporters stormed the polling station, threatened the UNPpolling agents, snatched ballot papers and stuffed about 300ballots in the ballot box. The SPO has noted in Part I of thejournal (under “events of a significant nature”) that at 10.00a.m. a crowd entered the polling station, that he Instructed thesecurity to remove them, and that they were removed; and, in amessage form in Part III, that a complaint was made by theUNP polling agents, who left at 11.40 a.m.
Girakaduwa PV polling station No. 24. The Petitionersalleged that at about 7.10 a.m. a mob of about 200 armed PAsupporters led by the 14th Respondent, a PA candidate, stormedthe polling station, threatened the UNP polling agents, snatchedballot papers and stuffed about 200 ballots in the ballot box.The SPO has noted in the journal the complaint made by thepolling agents that a group of thugs who came with a PAcandidate had threatened to kill them, and that there wereillegalities in the voting. He has noted the 14th Respondent’sarrival at 7.00 a.m. and departure at 7.05 a.m., and the pollingagent’s time of departure as 7.40 a.m. The 14th Respondent didnot file an affidavit denying the polling agent’s affidavit.
Yatirawana MV polling station No. 31. The Petitioners allegedthat a mob of about 200 armed PA supporters led by the 16thRespondent, stormed the polling station, threatened the UNPpolling agent, snatched ballot papers and stuffed about 750ballots in the ballot box; a complaint was made to the KandyPolice. The SPO has noted in Part III that at about 9.25 a.m. a
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group of unknown persons had attempted to chase away theUNP polling agents, but the security personnel had sent awaythat group; later that same group returned and chased the twoof them. He then noted that if this had not happened, a hugeproblem would have had to be faced! This entry is in a “message”form, of which one copy appears to have been despatched. Thereis also an entry in the section 46A (2) form (under “ls( incident”),signed by two persons, that they were leaving because a groupof unknown young persons had threatened them at 9.30 a.m.
The 16th Respondent filed an affidavit denying that he cameto that polling station. That was not rebutted, and thePetitioners failed to produce the complaint made to the Police.Accordingly, while it is clear that an incident did occur at thispolling station, Mr. Aziz, PC, for the Petitioners, conceded thatthe Petitioners had failed to establish, on a balance of probability,that the 16th Respondent participated in that incident. Forsimilar reasons he conceded he could not pursue allegationsagainst the 16th Respondent personally in respect of anotherpolling station.
Udadelthota MV polling station No. 19. The Petitionersalleged that at about 9.40 a.m. a group of about 15 PAsupporters armed with weapons and bombs led by the 12thRespondent, a PA candidate, stormed the polling station,assaulted and made death threats to a UNP polling agent, andbegan to stuff 750 ballots in the ballot box; a complaint wasmade to the Galaha Police. The SPO’s journal has three relevantentries, to the effect that the 12th Respondent came with a crowdto the polling station at 9.40 a.m. and again at 10.30 a.m.; thata Police constable told him that only he could enter and not thecrowd; that he scolded the constable and created a disturbance;and that the SPO closed the doors of the polling station, andexplained matters to the 12th Respondent, but with no result.The security staff sent away the crowd. They returned at 10.30a.m., and the 12th Respondent threatened the UNP polling agentsand chased them away. The security staff have also noted thatthis incident frightened the voters, and that one officer had to
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shoot two shots in the air to prevent danger to life and property.The 12th Respondent did not file an affidavit denying the pollingagent’s affidavit.
Metideniya MV polling station No. 17. The Petitioners allegedthat between 7.20 and 7.30 a.m., a UNP polling agent wasassaulted in the polling station; his electoral register was taken;and, after death threats, he was chased away. A complaint wasmade to the Udadumbara Police. In his journal the SPO hasrecorded two complaints made by the UNP agent, at 7.20 and7.45 a.m.; and also (as an “event of a significant nature") thatat 7.20 a.m. a crowd demanded ballot papers, which he refused,and that the UNP agents were sent away.
Niyangoda MV polling station No. 37. The Petitionersalleged that shortly after 7.00 a.m., a mob of PA supportersstormed into the polling station, and threatened, assaulted andchased away the UNP polling agents; and that the PresidingOfficer stated that he was going to close the polling station, butdid not do so. A complaint was made to the Galagedera Police.Only Part IV of the journal was produced. He has entered in thesection 46A (2) form (under “Is' incident”, seemingly in supportof a recommendation for the annulment of the poll) that between
and 7.10 a.m., when four votes had been cast, K.M.Alahakoon Banda had assaulted and chased away the two UNPagents, and that the Police have recorded the complaint; andlater that he informed the Field Assistant Returning Officer at
a.m., the ARO at 7.10 a.m., and the Police at 8.00 a.m.However, he did not sign that form, and both signature pagesare intact. It appears that a part only of that form had beendespatched.
Galagedera Jabbar MV polling station No. 8. The Petitionersalleged that PA supporters had threatened and chased awaythe UNP polling agents. The SPO records (in a "message" form)that by 8.07 a.m. the UNP polling agents had been called bysome groups of people and chased out from the polling booth,and that he had informed two ARO’s when they visited thatpolling station – one at 8.50 a.m. and other at 11.30 a.m.
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It is therefore clear now, on a balance of probability, thatballot – stuffing took place at twelve polling stations (IncidentsNos. (1) to (4) above); that at eleven other polling stations therewere incidents (Nos. (5) to (15) above) of harassment andchasing away of UNP polling agents by means of violence orthreats of violence; and that the 12th to 15th Respondents wereactively involved in four incidents (Nos. (6), (7), (10), and (12)above). What is more, there was primajacie evidence, evenbefore the count on 6.4.99, that these 23 incidents had takenplace. Neither the 12th to 15th Respondents nor the GeneralSecretary of the PA have denied those incidents.
The Petitioners alleged incidents at eleven other pollingstations. While each of those allegations was supported by asingle affidavit, there was neither an admission by any of theRespondents nor a supporting entry in the SPO’s journals. I donot propose to take these into account in deciding this case.
SPO’s were required, by means of the section 46A (2) form,to furnish to the Returning Officer, inter alia, (1) full particularsof ballot-stuffing (with serial numbers), and of harassing orchasing away polling agents, and (2) either a certificate as tothe propriety of the poll or a recommendation for its annulment.Despite the 1st Respondent having repeatedly stressed theimportance of Part IV of the journal, the factual position in regardto the submission of those forms (in respect of the 23 pollingstations at which incidents have been proved) is as follows:
The 1st and 2Dd Respondents did not themselves producewith their affidavits the section 46A (2) forms – neither theoriginals nor the duplicates – in respect of any of those 23 pollingstations.
The SPO’s journals were not called for in respect of nine ofthose 23 polling stations (i.e. the nine incidents of ballot – stuffingdisclosed by the Respondents – No. (3) above).
In regard to the fourteen (proved) incidents pleaded by thePetitioners, the journals were not produced for Polwatta andWattegama.
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In regard to the other twelve. In response to the Court orderto produce the SPO’s journals, the 1st Respondent producedonly the “M (2)” envelopes (but not the “22” envelopes); of those.In six Instances neither the original nor the duplicate of thesection 46A (2) form was in the “M (2)" envelope; in oneinstance, there was just one copy of the first page of that form,on which page only one entry had been made; in three instances,the entire booklet was available intact, without any entries; inanother instance, the entire booklet was available, with entriesmade on one page but even that page had not been sent; and inthe last instance, about one-half of the form had been completed,but not the signature page, and that portion only appears tohave been despatched.
Thus in eleven instances (out of twelve) the section 46A (2)form had neither been duly completed nor sent to the 2ndRespondent; in the twelfth instance only an incomplete andunsigned form had been sent. Since the seals on the “M (2)”envelopes were intact, it is clear that the 2nd Respondent hadnot even opened those envelopes in order to examine the forms.If he had, he (and, through him, the lsl Respondent) would havebecome aware that potentially serious incidents had occurred;that none of the SPO’s had certified that there were no incidentswarranting the annulment of the poll; that other parts of thejournals established that polling agents had indeed beenharassed and chased away – information expressly called for inthe final paragraph of the section 46A (2) form; and that atseven out of the eleven polling stations concerned, polling agentshad been chased away by 10.00 a.m. (and at four within thevery first hour). It is quite clear from their affidavits that the Is'and 2Dd Respondents had not examined Part IV of the SPO’sjournals (i.e. either the “M (2)" or the “Z” envelopes), despitethe 1st Respondent’s express and repeated Instructions to SPO’sto use Part IV as one major channel of communication. Theywere therefore unaware of all those incidents. Had the l51Respondent been aware of them, he would have had to considerwhether they fell within the scope of section 46A (1), and, if soto make inquiries to ascertain the truth of that information (see
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section 46A (2)); and thereafter to consider exercising hisdiscretionary powers of annulling the poll and of ordering a freshpoll.
I must now consider the impact of those incidents on thepoll at those polling stations. It is not simply a matter of x ballotsbeing stuffed, or y polling agents being driven out. Such incidentsinevitably have an effect far beyond the actual number of ballotsor polling agents involved. Their effect on other electors needsto be analysed. Demands for ballot papers for stuffing and/orfor the ejection of polling agents, if made by a few unarmedindividuals, quietly and inconspicuously entering and leaving apolling station, are bound to fail – unless, of course, there iscollusion and connivance by Presiding Officers and staff, securitypersonnel, and polling agents. Such demands can succeed onlywhen made by armed persons or by gangs of thugs, accompaniedby violence or a credible threat of violence. Such incidents willbe witnessed by electors waiting to vote, and will, through them,become known to others yet to come to the polling station.Undoubtedly some will be deterred from voting – exactly howmany, is a matter for speculation. But I can lake judicial noticethat not every elector is so brave, that he is determined to casthis vote even at the risk of injury (leaving aside, of course, thoseelectors who are resolved at all costs to cast not only their ownvotes, but the votes of others as well, including the dead andthe absent). As we asked Counsel, upon seeing such an incidentwould a pregnant woman standing in the queue – or an agedperson, or a mother carrying an infant – be less likely to go andvote ? Would not a man (or woman) who has just witnessedsuch an incident go back and dissuade others – aged parents,or spouse, or children, or neighbours – from voting ? Wouldpotential voters not lose confidence in the ability of the lawenforcement authorities to protect them against unlawful actsand/or to duly investigate them if they did occur ? Ballot-stuffingand driving out polling agents go hand-in-hand with violenceor the threat of violence – which, in turn, will have a deterrenteffect on electors in the vicinity as well as on those still in theirhomes. Impersonators will not have an easy task if there are
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polling agents present who might challenge them (and demanddeclarations under section 41). Obviously, polling agents arenot chased away because they are disliked, but because theyhinder Impersonation. Further, the practice of seizing pollingcards from electors must not be forgotten. That Is seldom anend In itself, because it does not prevent those electors fromvoting. However, If those electors can somehow be deterred fromvoting, and If there are no polling agents likely to object, a seizedpolling card will be a passport to impersonation. Thus drivingaway polling agents is a classic symptom of graver and morewidespread electoral malpractices, ranging from theintimidation of electors and the seizure of polling cards, to large-scale Impersonation.
SECTION 46A (2) : ANNULMENT OF POLL AND RE-POLLI have now to consider (a) whether the above 23 Incidentsfell within the scope of section 46A (1) (b), and whether the laRespondent ought to have declared the poll at the relevantpolling stations void; and (b) if so whether he should, actingunder section 46A (7) (a), have ordered a re-poll.
Was there a proper Poll ?
Mr. Marsoof, PC, ASG, submitted that the remedy ofannulment was confined to the three specific grounds mentionedIn section 46A (1) ;
“. . . there was no intention to confer on the Commissionerof Elections the power to make a qualitative assessment of thedemocratic nature of the poll and annul the poll if In his opinionit was not free and fair. On the contrary, the three groundsspecified . . . relate to objective facts, namely (a) the time ofcommencement of the poll, (b) the time of conclusion of thepoll, and (c) the ability to deliver the bElliot boxes to the countingofficer. The legislature has advisedly left the qualitativeEissessment of the poll to the Election Court. . . I Further] theresult of the election at the Administrative Dlstriict or Province
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would not have been affected even If the alleged irregularitiestook place. In the circumstances the 1st Respondent (was] notduty bound to annul the poll in the Administrative District andorder a fresh poll. . [emphasis added]
To test that interpretation we put to Mr. Marsoof twohypothetical situations : (1) where the poll duly commenced at
a.m., but as a result of violence was interrupted from 7.05
m. until 3.55 p.m., when the poll was resumed, and concludedat 4.00 p.m.; and (2) where, for an hour or two, an armed thugallowed electors to vote only for one party (or only after showinghim their marked ballot papers). His reply was that even insuch circumstances the Commissioner had no power to annulthe poll – even if a large number of electors might have beenprevented from voting, or from voting for the party or group oftheir choice, or from voting in secret. His contention was that ifthe poll had started on time, and ended on time, what happenedin between was a matter for the Courts, in an election petition;not for the Commissioner of Elections.
I reject, without hesitation, such a narrow and mechanicalinterpretation, which ignores the context in which the sectionappears, as well as its plain words.
Section 46A (1) appears in Part III of the Act, dealing with“The Poll” Many of the provisions of Part III manifest a legislativeintention that the poll must be free (e. g. sections 33 (2) and38), equal (e. g. sections 35, 36 and 40) and secret (e. g. section37). Besides, contrary to Mr. Marsoofs formulation, the“objective fact” to which paragraph (b) refers is not the time ofconclusion of the poll, but rather the continuation of the polluntil the scheduled time of conclusion. What that requires isthat, having duly commenced at the scheduled time, the pollmust continue until closing time.
What is a “poll” ? In my view, a poll is a process of votingthat enables a genuine choice between rival contenders:necessarily, one that is free of any improper influence orpressure; equal, where all those entitled to vote (and no others)
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are allowed to express their choice as between parties andcandidates who compete on level terms; and where the secrecyof the ballot is respected.
A mere semblance of a poll is not enough. The elaborateprovisions of the Act. and especially Part 111, compel theconclusion that Parliament had in mind a genuine poll, and nota mere charade. Such a poll must “continue”; i.e. voting musttake place not sporadically, but without interruption, frombeginning to end.
I therefore conclude that section 46A (1) (b) requires agenuine poll, continuing uninterrupted from beginning to end.and compels the Commissioner to make a qualitative assessmentas to whether the poll was free, equal and secret.
If 1 may digress at this point, it is very clear – from theamendments which he proposed on 27.2.99 – that the Is'Respondent fully realised that ballot-stuffing and chasing awaypolling agents were factors which prevented a proper poll, andwhich therefore demanded the annulment of the poll. Further,by means of the section 46A (2) form which he himselfprescribed, he required SPO’s not only to confirm that openingand closing times had been observed, but also to describe anyother incidents which warranted the annulment of the poll. IfMr. Marsoof is right in his submission that the 1st Respondentcould annul the poll only where the poll did not commence orconclude at the stipulated time, why did the 1st Respondentunnecessarily burden SPO's by asking them to submit detailedreports on other matters ?
Besides, if Mr. Marsoof s contention is accepted, then neithersection 46A nor any other provision of the Act empowers theCommissioner to determine that ballot papers had been stuffed,and to order their exclusion from the count. It is only the broaderinterpretation of section 46A (1) which brings ballot – stuffingwithin the scope of paragraph (b), and may perhaps justify theremoval of stuffed ballot papers as being an appropriate remedyfor ballot-stuffing in some cases. Thus where the ballot-stuffing
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had no effect on the poll or the electors, apart from the numberof ballots actually stuffed, their removal may cure the evil – butcertainly not where ballot-stuffing is accompanied by otherfactors which vitiate a proper poll.
Polling agents have a special role to play in a free, equaland secret poll, and this Court emphasised the need to ensuretheir security shortly before the disputed poll. Their right to bepresent at the polling station is expressly recognized by section33, in the same breath as the right of election staff, the police,and candidates. Their duties commence from the time the emptyballot box is sealed; and inter alia they have the right to challengesuspected impersonators. An election, ultimately, is determinedby the number of ballots cast. It is the polling agents who play aleading part in ensuring that only those entitled to vote do castballots. Chasing away polling agents makes a poll cease to beequal.
1 hold that on 6.4.99 there was prima facie evidence thatballot-stuffing and chasing away polling agents had taken place;that those incidents prevented the “continuation” of a poll at23 polling stations; and that there was no proper poll in law.The 1st and 2nd Respondents had sufficient notice of thoseincidents; the 1st Respondent was under a duty to inquire intothe truth of the information available in the SPO’s journals;but he failed to inquire into the eleven incidents of chasing awaypolling agents, and failed to make adequate inquiries in respectof the twelve incidents of ballot-stuffing. The evidence beforethis Court establishes that if the 1st Respondent had madeproper inquiries, he could not reasonably have concluded thatthere had been a genuine and uninterrupted poll at any of thosepolling stations.
Annulment of Poll
It is true that section 46A(2) does not require an automaticannulment of the poll for each and every non-compliance. Theword “may” confirms that the 1 s‘ Respondent has a discretionarypower. However, that is a power coupled with a duty: whenever
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it appears that the proved non-compliance has interfered witha free, equal and secret ballot, that discretion must be exercised.It is only where the lapse was trivial, and had no effect on therights of electors that the Commissioner could properly refrainfrom exercising that discretion: as, for instance, if the poll hadcommenced a few minutes late (or concluded a few minutesearly), or was interrupted for a few minutes by some accidentor misfortune (e. g. a member of the polling staff being taken ill,or a sudden rainstorm causing a leak in the roof of the pollingstation, or a drunkard creating a disturbance). If it appearsthat no one was consequently prevented from voting, it wouldbe an improper exercise of discretion to annul the poll: the word“may” permits the application of the principle that de minimisnon curat lex. It is not necessary to consider in this case whetherthe Commissioner could properly refrain from annulling the polleven where a few electors had been affected by an incident notdirected against them on account of their political views. Butvery different considerations apply to organized violencecalculated to influence the poll significantly by deterring onesection of the electors.
I must deal next with Mr Marsoofs submission that theCommissioner cannot annul the poll unless the result of theelection (at the District or Provincial level) would have beenaffected. Section 46A(2) imposes no such restriction on theCommissioner’s powers and duties (unlike section 46A(7) (a)).
I hold that the 1st Respondent should have annulled thepoll, not only at Polwatta but also at the other 22 pollingstations.
Re-poll
Where the Commissioner has annulled the poll at a pollingstation, section 46A(7) (a) requires him, on receipt of thestatements under section 51(7), forthwith to appoint a freshdate for taking a poll at that polling station, if he is of the opinion
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Commissioner of Elections and Others (Fernando, J.)
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that the result of the election for such administrative districtwill be affected by the failure to count the votes polled at thatpolling station. This must be contrasted with section 92( 1)which requires proof – in an election petition – that non-compliance materially affected the result of the election.
What is the “result” of an election under the proportionalrepresentation system? Section 58 deals with the “Declarationof the result:” the returning officer must declare electedcandidates from each party or group, having regard both to thevotes obtained by such parly or group, and the preferencesobtained by each candidate. There is no provision for thedeclaration of the number of seats won by each party or group,distinct from the identification of the candidates elected. (Section61A provides for the Commissioner thereafter to declare twomore candidates declared elected for the two bonus seats forthe province).
The statements under section 51(7) will disclose to theCommissioner (a) the votes polled by each party or group in thedistrict, and (b) the number of preferences secured by eachcandidate. From that he would be able to determine the numberof seats to which each party or group is entitled, as well as whichcandidates should be declared elected. Nevertheless, the “result”of the election in the district is the declaration that specifiedcandidates have been elected.
What the Commissioner had then to determine is whetherthe failure to count the votes at the polling station where thepoll has been annulled “will affect” that result. That does notmean that the Commissioner has to be certain that there wouldbe a different result; it is enough if it appears that a re-poll waslikely to result in one or more other candidates being elected.
In the Kandy District, the PA and the UNP were each entitledto thirteen seats, and the Janatha Vimukthi Peramuna (“JVP”)to one seat. The votes polled by the PA and the UNP candidates
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who came 12th to 15th and the JVP candidates who came Is1 to3rd were as follows:
PAUNPJVP12th18,57616,347:Is'1,794
13th18,44813,478:2nd1.535
14th18,00312,767:3rd1,457
15th17,12312,286:
The 1st Respondent had annulled the poll at Polwatta. It ispossible that even a re-poll at Polwatta alone would have affectedthe above result: in the case of the PA and the UNP candidateNo. 14 might have got elected in place of candidate No. 13; andthe JVP candidate No. 2 in place of candidate No. 1.
But, for the reasons set out above, the 1st Respondent shouldhave annulled the poll in another 22 polling stations besidesPolwatta. Had that been done, section 46A (7) (a) would haverequired him to consider the cumulative effect of a re-poll at all23 polling stations. It was then not merely possible, but very likelythat a re-poll would have significantly affected the preferenceobtained by the “borderline” candidates, and the “result" wouldthen have been different in regard to which candidates wereelected. The fact that the party position might have remainedunchanged does not mean that the “result” was not affected.
I must now turn to the submission which Mr Marsoof madein this connection. To appreciate that submission, it is necessaryto set out the Kandy District election results:
Votes polled Seats won
PA247,25013
UNP232,93413
OTHERS39,8752
Majority14,316
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He submitted that In order to annul the election in the KandyDistrict the Petitioners must show that the UNP would havepolled more votes than the PA and the other parties combined(namely 247,250 plus 39,875 plus one, = 287,126 votes): that,but for the irregularities complained of, the UNP would havepolled another 54,192 votes, making a total of 287,126.
In support of this proposition, he cited Bandaranaike vPremadasa,(2>
“There is another relevant matter to which we must refer.Mr Choksy drew our attention to paragraph 05 of thepetition where it is averred that according to the resultsdeclared by the Commissioner of Elections, the majority bywhich the 1st Respondent won is 279339 votes. It was thesubmission of Counsel that even if the Pfedtoner got one morevote than the majority obtained by the 1st Respondent shewould still not have been declared elected. Mr Choksycontended that the Petitioner in order to win had to get thetotal votes received jointly by the UNP and the SLMP plusone more vote. Thus she would have had to get 515059more votes than she polled in order to have succeeded atthe election. It appears to us that this submission is well-founded.” [emphasis added]
In a Presidential election the candidate who polls 50% plusone vote is declared elected. If no candidate polls 50% plus one,then there is a further count at which the votes cast for allcandidates (other them the first and the second) are ignored,and preference votes are counted to ascertain which candidatehas obtained 50% plus one. Either way, the winner-takes-all,and other candidates get nothing. That is fundamentallydifferent to the result of a Provincial Council election, based onthe proportional representation system. There the party or groupwhich polls the highest number of votes does not win every seat;and many candidates are elected, from several parties andgroups, besides the one who gets the highest number ofpreferences.
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1 entirely agree with the dictum cited. As stated therein. “Inorder to win” – i.e. to obtain a judicial declaration that he wasduly elected – an unsuccessful Presidential candidate mustshow that he would have obtained 50% of the total votes plusone (and not merely more votes than the successful candidate).But even in a Presidential election there can well be anintermediate position between upholding the impugned electionand declaring an unsuccessful candidate elected. If it is shown,for instance, that neither the successful candidate nor any othercandidate actually got (or would have got) 50% of the toted votespolled plus one, then to allow the “result” (namely, that thesuccessful candidate was elected) to stand would be contraryto law; and to determine who actually was elected an order forthe count of preference votes becomes necessary. The dictumcited does not purport to deal with that situation.
In any event, a Provincial Council election is quite different.The “result” includes several components: which parties orgroups are entitled to the seats in the district on the basis ofvotes polled, which is entitled to the two bonus seats for theprovince, and which candidates of such parties or groups areentitled to be declared on the basis of preferences. Thus eventhose irregularities, which affect only the preferences and therebythe identification of the candidates elected, do affect the “result.”
It must also be noted that the Petitioners do not claim theannulment of the Kandy District election and a fresh election.Their claim is that the 1st Respondent’s failure to order a re-poll in certain polling stations was in violation of theirfundamental rights. The dictum in Bandaranalke v. Premadasais inapplicable to the Petitioners’ claims in this application.
I hold that the 1st Respondent could not reasonably haveconcluded that the irregularities disclosed at those 23 pollingstations would not have affected the result of the poll thereat.Consequently, section 46A(7) (a) left him no choice but to ordera re-poll at those 23 polling stations.
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It is true that a re-poll would have caused considerabledelay in determining the overall result for Kandy District, andconsequently for the Central Province as well. But as betweenavoiding delay and inconvenience, however serious, to a largenumber of electors, and remedying the infringement of the rightof a much smaller number of electors at those 23 polling stationsto a free, equal and secret poll, undoubtedly the latter is farmore important. It must be noted that not only did the 1stRespondent himself remember the recent experiences at theNorth Western Provincial Council elections, but he was againreminded on 23.3.99 of the need for adequate provision toensure the safety and freedom of voters, counting agents, and,particularly, polling agents. It was the failure by the 1stRespondent to insist upon the provision of adequate security -personnel, weapons, communication equipment, vehicles, etc -which was a principal cause of those infringements. The 1stRespondent, as one limb of the Executive, can hardly claiminfringements caused by culpable inaction on the part of anotherlimb of the Executive should remain unremedied on the groundof inconvenience.
The statutory powers and duties of the 1st Respondent areintended to ensure a free, equal and secret poll. Accordingly, Iam confident that at all future elections the 1st Respondent willinsist that adequate security be provided at all polling stations,and whenever there is no genuine, free, equal and secret poll atany polling station he will duly exercise his powers to annul aninvalid poll and to order a re-poll. Those who seek to prevent aproper poll today must be made to understand that the 1stRespondent will ensure a proper poll tomorrow.
NATURE OF THE RIGHT CLAIMED BY THE PETITIONERSIt is not disputed that the Petitioners, being registered votersof the Kandy District, had a legal right to vote at that election,and that voting, in the exercise of that legal right, was a form of“expression” guaranteed by Article 14(1) (a), as I held inKarunatileke v. DissanayakeJ31
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Provincial Council elections are not expressly mentioned inArticles 4(e) and 93, and it was open to argument that therequirement that elections be “free, equal and by secret ballot"did not apply to such elections. Even though that requirementhas not been expressly set out, in my view that requirement isfundamental to any election in any nation which respects thesovereignty of the People, representative democracy and the Ruleof Law. 1 therefore hold that the right to a free, equal and secretballot is an integral part of the citizen’s freedom of expression,when he exercises that freedom through his right – whetherconstitutional or statutory makes no difference – to vote.
Further, the constitutional duty of the Commissioner ofElections (under Article 104) extends to all elections conductedunder any statute, including Provincial Council elections. Theduty imposed by Article 4(d) on all organs of government torespect, secure and advance fundamental rights applies to himtoo, and it is therefore his obligation to conduct each and everyelection in such a manner as to safeguard the fundamental rightsof every registered voter.
While it is clear that the rights of many voters (registered atthe aforesaid 23 polling stations) to a free, equal and secretballot were infringed, none of the Petitioners claims that hepersonally experienced even the slightest inconvenience orimpediment whatsoever in regard to the exercise of his right tovote. Even the 4th Petitioner who was chased away from a pollingstation did not allege that this prevented him from voting.
Thus it appears that the irregularities complained of directlyinfringed only the right to vote of others. Do those infringementsconstitute in law an infringement of the Petitioners’ fundamentalrights under Articles 12(1) and 14(1) (a)? To answer thatquestion, I must consider the true nature of a citizen’s right tovote.
Article 25 of the International Covenant on Civil and PoliticalRights is a useful starting point:
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“Every citizen shall have the right and the opportunity,without any of the distinctions mentioned in Article 2 andwithout unreasonable restrictions:
To take part in the conduct of public affairs, directly orthrough freely chosen representatives;
To vote and to be elected at genuine, periodic electionswhich shall be by universal and equal suffrage and shallbe held by secret ballot, guaranteeing the free expressionof the will of the electors; . . . (emphasis added]
Sri Lanka is a party to that Covenant and its sisterCovenant, which together constitute the international Bill ofHuman Rights. It would be idle to argue that our election lawspertaining to Provincial Council elections are not founded onguarantees to every citizen of the right to “take part” in publicaffairs, through representatives freely chosen by him, at agenuine election, by universal and equal suffrage, held by secretballot, ensuring the free expression of the will of theelectorate. Article 27(15) requires the State “to endeavour tofoster respect for international law and treaty obligations indealings among nations.” Accordingly , in interpreting therelevant provisions of an enactment regulating any election aCourt must, unless there is compelling language, favour aconstruction which is consistent with the internationalobligations of the State, especially those imposed by theinternational Bill of Human Rights. I hold that those guaranteesare an essential part of the freedom of expression recognized byArticle 14(1) (a).
The citizen’s right to vote includes the right to freely choosehis representatives, through a genuine election which guaranteesthe free expression of the will of the electors: not just his own.Therefore not only is a citizen entitled himself to vote at a free,equal and secret poll, but he also has a right to a genuine electionguaranteeing the free expression of the will of the entire electorateto which he belongs. Thus if a citizen desires that candidate x
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should be his representative, and If he Is allowed to vote for Xbut other Uke-minded citizens are prevented from voting for X,then his right to the free expression of the will oj the electorshas been denied. If 51% of the electors wish to vote for X, but10% are prevented from voting – in consequence of which X isdefeated – that is a denial of the rights not only of the 10% but ofthe other 41% as well. Indeed, in such a situation the 41% maylegitimately complain that they might as well have not voted. Tothat extent, the freedom of expression, of like-minded voters,when exercised through the electoral process is a collective one,although they may not be members of any group or association.
That is by no means unique. A scrutiny of Ardcle 14 revealsthat many fundamental rights have both an individual and acollective aspect.
A citizen’s freedom of speech guaranteed by Article 14(1)(a) is violated not only when he is not permitted to speak, buteven when others are prevented from listening to him. A corollaryof A’s freedom of speech is A’s right that those to whom he wishesto speak should be permitted to listen to him – provided of coursethat they want to listen to him. If a part of his audience is drivenaway, the effectiveness of the exercise of his freedom of speech isimpaired, and thereby his right is infringed.
In the exercise of their freedom of expression, a thousandpeople – each unknown to the other – may decide to support apeaceful noise protest (a Jana Ghosha as in Amaratunga v.Sirimal141). It may be organised by some association of whichthey are not members. If half of them are prevented fromparticipating, that would reduce the effectiveness of the noiseprotest by the other half – and the latter’s freedom of expressionwould also be infringed.
The freedom of peaceful assembly (under Article 14( 1) (b))is yet another example. If, in the exercise of that right, 50 citizenswish to meet together, but 45 are prevented from coming to themeeting place, that is an infringement of the rights even of thefive who experienced no obstruction: true, their right to meet
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has not been completely denied, but undoubtedly it has beenso severely Impaired as to be almost useless.
Article 14(1) (c), (d), (e), (f) and (g) expressly recognise thatthose freedoms have both an individual and a collective aspect.If ten citizens wish to form an association (whether a politicalparty, a trade union, or a society), and the Executive restrainseight from'joining, that necessarily affects also the freedom ofthe two who are not restrained; they cannot form the associationwhich they wished to form, but only a pale shadow of it.
This is true of Article 14( 1) (h) and (i). A citizen married toa non-citizen who wishes to reside in a particular locality maybe told that he can live there, but not his spouse. His spousecannot complain because it is only citizens who enjoy thoserights. Particularly because the State is enjoined “to recogniseand protect the family as the basic unit of society”(Article 27(12)), a citizen’s choice of residence (or freedom ofmovement) is effectively denied if his spouse is not permitted tobe with him. So also if a citizen is told that he can return to SriLanka, but not his non-citizen spouse.
The true value of a citizen’s vote can never be ascertainedin isolation; only collectively, taken together with the votes ofothers who think alike. To ignore that would set the bell tollingfor democracy, for in this context:
“No man is an island, entire of itself,
Every man is a piece of the continent, a part of the main;
Any man’s death diminishes me because 1 am involved in
mankind;
And therefore never send to know for whom the bell tolls;
It tolls for thee.” (John Donne, Devotions)
I therefore hold that the failure of the 1st Respondent toensure a genuine, free, equal and secret poll – a poll which gave
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true expression to the will of all the electors – and following uponthat, his failure thereafter to annul the poll, and to order are-poll at all 23 polling stations aforesaid, infringed the right ofthe Petitioners to the freedom of expression under Article 14(1)(a), and to equality and equal protection under Article 12(1).
1 must hasten to add that a genuine, free, equal and secretpoll is not confined to what happens within the polling station,between 7.00 am and 4.00 pm on polling day. A genuinedemocratic election by universal and equal suffrage demandsmany other safeguards: including, but not limited to (a) properand timely registration procedures, which ensure the speedyinclusion of all citizens entitled to vote and the exclusion of allthose disentitled, as well as the prevention of dual registrationand the impersonation of the dead and the absent; (b) ensuringthat during the pre-election period all candidates are allowedthe freedom to campaign on equal terms and withoutunreasonable restrictons, with election laws being enforced,and uniformly enforced, and without any misuse or abuse ofState media, resources and facilities; and (c) the prevention ofelectoral wrongdoing, and whenever that is not possible, theprompt investigation and prosecution of election offences.
PRELIMINARY OBJECTIONSAt the commencement of the hearing, Mr. Marsoof took two“preliminary” objections: that persons against whom specificallegations had been made in the petition, in particular the SPO’sof the various polling stations and the Inspector-General ofPolice, had not been made respondents, and that the petitioncould not be maintained because a special procedure had beenlaid down in Part VII of the Act for investigating allegations ofthe kind set out in the petition, and other remedies were therebyexcluded. Mr. Jayawardene submitted that the 16th Respondentwas a private individual and his alleged conduct did notconstitute “executive or administrative action.”
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Non-Joinder
This objection could not be determined in limine, becausethe facts had first to be determined. This Judgment is based onthe defaults of the 1st and 2nd Respondents in relation toincidents at 23 polling stations; it does not depend on allegationsagainst or defaults by the SPO's or the police, and the need tojoin them does not arise. The objection therefore fails. I expressno opinion on the question whether the 1st Respondent couldhave been held responsible for the acts and defaults of hissubordinates, whether Joined or not.
Executive or cuiministrative action
This, too, was not really a preliminary objection, because itdepended on the facts as to the exact nature of the 16thRespondent’s acts, and whether the principle in Faiz v.Attorney-General,'51 was, applicable. Since Mr. Aziz laterconceded that the Petitioners had failed to establish, on a balanceof probability, that the 16th Respondent had participated inthe incidents alleged against him, it is unnecessary to considerthis objection in relation to the 16th Respondent.
However, it is necessary to decide whether the acts of the12th to 15th Respondent (who were absent and unrepresentedat the hearing although noticed) constituted “executive oradministrative action” and whether there is any basis on whichrelief may be granted against them.
It was the duty of the 1st Respondent to permit polling agentsto remain at the polling station, and to ensure that they werenot compelled to leave. The 12th to 15th Respondents have notdenied their involvement in chasing UNP polling agents fromfour polling stations, by means of violence, or the threat ofviolence, which effectively prevented the ls[ Respondent (throughhis officers) from discharging the duty which he owed to thepolling agents and the electorate.
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Further, they were candidates at the election, and as suchsection 33(2) gave them (as well as the secretaries of recognizedpolitical parties) a special right to enter and remain at any pollingstation. On the other hand, the polling staff, the police, and thepolling agents had a right only to remain in the particular pollingstation assigned to them, while voters could remain there onlyfor the period necessary to vote. That right was not given tocandidates in order to get support in one way or another, but toenable them to observe the conduct of the poll and to satisfythemselves that it was being conducted properly: i.e. that theexecutive functions of the 1st Respondent and his subordinateswere being duly performed. By chasing away polling agents theyabused their statutory right, and procured an executive oradministrative injustice.
I hold that their conduct fell within the principle laid downin Faiz v. Attorney-General, and they were properly joined asrespondents, thereby giving them an opportunity, which theydid not make use of, to rebut the allegations made against them.However, the Petitioners have failed to pray for any relief againstthem, and hence none is ordered.
Special remedy by election petition
Mr. Marsoof submitted that an election petition under PartVI1 of the Act is the exclusive remedy for the fair or effectivedetermination of election disputes: that where a statute confersa right and provides for a special mechanism for itsimplementation, any infringement of that right should beredressed only by resort to the special mechanism provided bythat statute: and that election disputes cannot be adjudicatedin this Court in the guise of an application under Article 126.
In my view, a fundamental rights (“FR”) application and anelection petition are legal proceedings which are completelydifferent in character, both in respect of the disputes and theremedies involved.
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Any citizen can file an FR application, seeking redress forhis own benefit, in respect of the executive violation of hisconstitutionally guaranteed rights; and such redress will extendto the quashing of impugned acts, directions to perform acts,and the award of compensation. An election petition, however,can be filed only by a candidate; only upon the limited groundsset out In section 92( 1), which grounds not only include sometypes of “executive misconduct” but also extend to wrongdoingby a successful candidate; and the only redress which may begranted (section 96) is that an election In a particular districtwas void, that a successful candidate was not duly elected, andthat some other candidate was duly elected. In this case, thePetitioners ask the Court to declare void the poll, and to order are-poll, at certain polling stations – relief which could not havebeen granted in an election petition. What is more, the formerinvolves a constitutional right, a constitutional remedy, and aconstitutional jurisdiction vested in the highest Court. Ordinarypost-Constitution legislation may validly confer new jurisdictions(including election petition jurisdiction) on the Court of Appeal,but cannot dilute or diminish any constitutional jurisdiction ofthis Court.
Mr. Marsoof attempted to get over these difficulties bycontending that “when a candidate files an election petition hedoes so on behalf of all (sic) the voters in a representativecapacity, and the petition becomes a matter in which the wholeelectorate, not to say the whole country, has an interest,” citingDon Alexander v. Fernando.161 That decision does not in anyway support the plainly fallacious proposition that a candidateever acts on behalf of all the voters, including those who opposedhim. Further, even where his own supporters have beenprejudiced, he may refrain from filing an election petition forreasons of his own. And even if he does file an election petition,because his supporters have been affected by wrongdoing, hecannot seek or obtain any relief for them – but only in respect ofthe election.
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I therefore reject that preliminary objection.
ORDERSection 50 of the Act lays down the procedure for the count.Each ballot box is opened; after the ballot papers are counted,the ballot papers taken from all the boxes for that countingcentre are mixed together; and they are then counted. While theballot papers of Polwatta were excluded from the count, the ballotpapers from each of the other 22 polling stations are now mixedwith the ballot papers from other polling stations assigned tothe same counting centre. Accordingly, if the poll at those pollingstations were now annulled, it would be virtuallyimpossible to extract and exclude those ballot papers: and unlessthat is done a re-poll would be futile.
But even assuming that the removal of those ballot papersis possible, a re-poll contemplates a prompt poll by the sameelectors. If ordered under section 46A(7) (a) a re-poll shouldhave been held within a few days, and without any change inthe electoral list. If a re-poll is ordered now, nearly two yearslater, the electorate would not be the same: if the old electorallist is used, some of the voters would no longer be living: and ifthe current list is used, it would include new electors who werenot eligible previously.
It is therefore not feasible for this Court now to order the 1stRespondent to declare the poll to be void, and to order a re-poll,at the aforesaid polling stations as prayed for by the Petitioners.
1 grant the Petitioners a declaration that their fundamentalrights under Articles 12(1) and 14(1) (a) have been infringed bythe failure of the 1st Respondent to conduct a proper poll at theaforesaid 23 polling stations; to hold proper Inquiries into theincidents of ballot-stuffing and chasing away polling agents; todeclare void the poll at the 23 polling stations aforesaid (otherthan Polwatta); and to order a re-poll at those 23 polling Stations.
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The Petitioners have not prayed for compensation. However,they have come to Court to vindicate Important fundamentalrights, and are entitled to costs. The 1st Respondent made anhonest effort • although inadequate – to ensure agenuine election, but was not given the necessary support andresources. An order for costs against him would not be just.The State is directed to pay the Petitioners a sum of Rs 50,000as costs.
WADUGODAPITXYA, J.ISMAIL, J.Relief granted.
1 agree.1 agree.