035-SLLR-SLLR-1993-2-CHANDANA-DE-SILVA-COMMISSIONER-OF-ELECTIONS-AND-ANOTHER-v.-GEORGE-IVAN-APPU.pdf
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Chandananda de Silva Commissioner of Elections and Another
v. George Ivan Appuhamy and Others
40 i
CHANDANANDA DE SILVACOMMISSIONER OF ELECTIONS AND ANOTHER
v.GEORGE IVAN APPUHAMY AND OTHERS
SUPREME COURT.
FERNANDO. J.
AMERASINGHE, J ANDKULATUNGA, J.
SC APPEAL NO. 15/92CA APPLICATION N0.530/91MAY 04 AND 05. 1992.
Mandamus – Municipal Council Elections – Proportional representation (PR)system – Counting of Votes and preferences – Counting Agents – recounts -Right to be present at count – Local Authorities Elections Ordinance as amendedby Act No. 24 of 1972 and 24 of 1978 ss. 60, 62, 63, 65.
The Negombo Municipal Council Elections were held on 11.5.91 under theproportional Representation (PR) system as modified by Act No. 24 of 1987 apartfrom casting his vote for the Party or Group of his choice each voter was permittedto indicate preferences for three of the candidates of the party or group for whichhe voted. After voting ended, the election officials counted the votes in six roomsfrom 8.00 p.m. or 8.30 p.m. on 11.5.91. The same officials then proceeded tocount the preferences from some time in the morning of 12.5.91 till 4.00 p.m.that evening with short breaks and intervals for meals etc. Since each ballot couldhave preferences for three different candidates ballot papers could not be sortedinto bundles according to preferences and then counted. Instead the preferencesindicated in each ballot paper had to be separately recorded on sheets of paper.One group of officials read out the preferences while another recorded them.There was no suggestion of deliberate falsification of results. According to acircular (2R1) dated 2.5.91 only two counting agents could be present at eachcounting centre and no candidate had a right to enter a counting centre by virtueonly of his candidature. Some or all the Independent Group candidates requestedtheir leader (3rd respondent) that they and/or their counting agents be permittedto be present at the count. The 3rd responded told them this could not bepermitted. But the 2nd petitioner (who was a candidate) was one of the group'scounting agents and thereafter there was no absolute prohibition on candidatesbeing present at the count.
A recount was not demanded. The result had been declared in terms of section65 of the Local Authorities Elections Ordinance at 8.00 p.m. on 12.5.91. Noagents of the Independent Group were present at those proceedings. When theOrdinance was amended in 1977, section 63(6) provided for the preparation ofone written statement as to the votes cast, and section 63 (7) enabled a recountto be applied for before the statement was prepared. However, when in 1987
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section 63(6) was amended to provide for two written statements, section 63(7)was not amended and continued to refer to a written statement referred to insubsection (6).
The circular 2R1 dated 2.5.91 issued to all parties and groups does not containan absolute prohibition on the admission of candidates to the count. It merelyrestated that which is implicit in section 62(1) that a candidate, qua candidatewas not entitled to admission to the count. It is not ultra vires nor an improperrestriction of the counting officers discretion. Further no request had been madeto the counting agent to permit candidates and their counting agents to be presentat any stage. There was therefore no refusal.
In the scheme of the Ordinance, the declaration of the result by the returningofficer takes place in the proceedings under section 65 (sec. 65(d) and (c)) onthe basis of the statements as to votes and preferences prepared under s. 63(6).The returning officer is thereupon required under section 66 to publish a noticespecifying the names of the candidates elected, and to report the result to theCommissioner of Elections, who will cause those names to be published in theGazette. There is no provision for informal communication of the results.
The law requires that a written statement of preferences should have beenprepared under section 63(6) and by implication at least, that a written recordbe made of the declaration of the result under section 65. Both these acts shouldhave been done on 12.5.91 before any dispute arose. It is not suggested thatthere were no such documents. It must be assumed that the official records didexist. The notice under section 66(1) and the Gazette notification under section66(1) were before court. It was not necessary to decide whether these noticesdiffered from one or more non-statutory oral statements made by the 2nd appellant(Asst. Commissioner of Elections) after he was functus insofar as the declarationof the result was concerned.
The circular 2R1 did not absolutely prohibited the presence of candidates at thecount or improperty restrict the discretion of the counting officer. The petitionershad failed to prove any probability of error in regard to the count of the preferencesor any irregularily in regard to the declaration of the result.
Parliament deliberately refrained from making references to candidates in s. 60.A candidate or his agent, not present at the count, could not be given the rightto demand a recount and accordingly in section 63(7) too, no reference was madeto candidates. There was no lacuna in section 60. The counting officers discretionhas to be exercised reasonably having regard to the exigencies of the countand not to admit all candidates to the count as a matter of course.
Section 63(7) confers a right to a recount in regard to both votes and preferencesbut that right is conferred on counting agents and not on candidates. After thecounting officers made the written statement of preferences he was functus officioand could not make a recount either later on the same day or on 14.5.91 andcorrectly advised the petitioners that their remedy lay in the courts. The 2nd
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appellant had no power to order a recount and his refusal to do so was notunlawful. Mandamus did not lie.
Cases referred to :
1. ft V. Hanley Revising Barrister (1912) 3 KB 518, 529.
APPEAL from Judgment of Court of Appeal.
Shibly Aziz, P.C., Additional Solicitor General for 1st and 2nd appellants.Asoka Gunasekera for petitioner – respondent.
Cur. adv. vult.
July 23, 1992.
FERNANDO, J.
The Petitioners-Respondents (" the Petitioners ”) were two candidatesof the Independent Group which contested the Negombo MunicipalCouncil elections held on 11.5.91. There is no dispute as to thecounting of votes or the number of seats (six) to which that Groupbecame entitled. The questions in issue relate entirely to the countingof the preferences indicated by the voters, and the declaration ofthe result in regard to the selection of the candidates to fill the sixseats won by the Group. The petitioners applied to the Court ofAppeal for a writ of Certiorari to quash the determination of thenumber of preferences indicated for each candidate of the Groupmade by the 2nd Respondent-Appellant, the Returning Officer (“ the2nd Appellant “), and the declaration made by him in respect of thecandidates of the Group entitled to the said six seats, and for a writof Mandamus directing the 1st Respondent-Appellant, the Commis-sioner of Elections (“ the 1st Appellant ''), to hold a recount of thesaid preferences in the presence of the 28 candidates and theircounting agents, to communicate to the Court the results of suchrecount, and in terms thereof to make a declaration as to thecandidates elected.
It is convenient to reproduce the relevant provisions of the LocalAuthorities Elections Ordinance before the Proportional Representa-tion (“ P.R. “) system was introduced. The Ordinance Provided60(1) Each candidate at any election for any ward may appoint oneagent (hereinafter referred to as a ” counting agent ") to attend atthe counting of the votes at such election. Notice in writing of such
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appointment, stating the name and address of such personappointed, shall be given by such candidate to the returning officertwo clear days at least before the opening of the poll at suchelection. The returning officer may refuse to admit to the placewhere the votes are counted any counting agent whose name andaddress have not been so given, notwithstanding that his appoint-ment may be otherwise valid, and any notice required to be givento a counting agent by the returning officer may be sent by postto, or delivered at, the address stated in the notice."
p 62(1) Except with the consent of the returning officer, noperson other than the returning officer, the persons appointedto assist him, and the candidates and their counting agents maybe present at the counting of the votes."
" 65 When the result of the poll has been ascertained, thereturning officer of the ward in which the poll was taken shallforthwith declare to be elected the candidate to whom the greatestnumber of votes has been given :
Provided that, upon the application of any candidate or hisagent, a recount shall be made before the returning officer makesthe declaration."
When the P.R. system was first introduced, each recognizedpolitical party and independent group was required to submit a listof candidates arranged in order of priority as determined by the partyor group (cf. sections 65(2) (d) and 65A (3) as amended by LawNo. 24 of 1977), and the question of the voters preferences did notarise. The Ordinance, as amended then provided :
" 60 Each recognized political party or an independent groupwhich has nominated candidates at any election for any electoralarea may appoint not more than two agents (hereinafter referredto as the “ counting agents ') to attend at the counting of thevotes at each place before the votes are counted at such electionand not more than two agents to attend at the proceedings undersection 65. Notice in writing of such appointments, stating thenames and addresses of the persons appointed, shall be givenby the secretary of such recognized party or its authorized agent,or the group leader, to the counting officer or returning officer,as the case may be, before the counting or declaration of theresult commences. The counting officer or returning officer, as the
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v. George Ivan Appuhamy and Others (Fernando, J.)
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case may be, may refuse to admit to the place where the votesare counted or the place where the proceedings under section65 takes place any counting agent or other agent whose nameand address has not been so given. "
“ 62(1) Except with the consent of the counting officer, noperson other than the counting officer, the persons appointed toassist him, and the counting agents may be present at thecounting of the votes. “
" 63(6) The counting officer shall prepare a written statement,in words as well as in figures, of the number of votes given foreach recognized political party and independent group, and suchstatement shall be certified by the counting officer and witnessedby one of his assistants or clerks and the agents of any partyor group as are present and desire to sign.
Before the counting officer makes a written statementreferred to in subsection (6), such number of recounts may bemade as the counting officer deems necessary ; and a recountor recounts shall be made upon the application of a counting agentso however that the maximum number of recounts that shall beso made, on the application of any counting agent or all thecounting agents, shall not exceed two. “
" 65(1) (a) After the receipt of the documents referred to insection 64, the returning officer shall determine in the mannerhereinafter provided in this section the candidates to be declaredelected as Mayor, Deputy Mayor and members.
(b) The returning officer shall from the statements of thenumber of votes given at each polling station, add up and de-termine the number of votes given for each recognized politicalparty and independent group. 0
Thereafter the P.R. system was modified by Act No. 24 of 1987to permit the voter to indicate preferences for three of thecandidates of the party or group for which he voted. Sections 60,62(1), 63(7) and 65(1) (a) were not amended. Section 63 wasamended by the addition of sub-sections (6A) to (6C) in regardto preferences ; section 63 (6B) was repealed by Act No.25 of
Amendments which were consequential upon the preferencesystem were also made to sections 63(6) and 65(1) (b) :
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" 63(6) The counting officer shall prepare a written statement,in words as well as in figures, of the number of votes given foreach recognized political party and independent group, and aseparate statement, in words as well as figures, of the numberof preferences indicated for every candidate nominated by eachparty or group, and such statement shall be certified by thecounting officer and witnessed by one of his assistants and clerksand the agents of any party or group as are present and desireto sign."
11 65(1 )(b) The returning officer shall from the statements of thenumber of votes and preferences given, determine the numberof votes given for each recognized political party or independentgroup and the number of preferences indicated for each candidatenominated by each such party or group. "
Other relevant provisions are :
“ 61 (2) The returning officer shall, before he proceeds to declarethe result of an election under section 65, give notice in writingto the secretary or the authorized agent of a recognized politicalparty or the group leader of an independent group contesting thatelection of the time and place at which the result will be declared.
" 66(1) Upon the declaration of the result of any election ofthe Mayor and Deputy Mayor and members of the local authorityof an electoral area, the returning officer of that electoral areashall –
publish a notice specifying –
the names of the two candidates elected as Mayor andDeputy Mayor ; and
the names of the candidates elected as members ; and
report the result through the elections officer of the districtin which the area is situated to the Commissioner."
“ 66(2) The Commissioner shall forthwith upon the receipt ofthe report of the result cause the names of the two candidateselected as Mayor and Deputy Mayor, and the names of thecandidates elected as members to be published in the Gazette.”
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“ 67(2) The returning officer shall forward to the electionsofficer of the district in which the electoral area is situated all thepackets of ballot papers in his possession, together with thestatements under subsection (6) of section 63, the ballot paperaccount, tendered votes list, packets of counterfoils and the markedcopies of electoral lists sent by the counting officers endorsingon each packet a description of its contents and the date of theelection to which they relate, and the names of the electoral areain which the election was held."
" 67 (4) No person shall be entitled or be permitted by theelections officer to inspect any packet of ballot papers ordocuments referred to in subsection (3) while it is in the custodyof such officer :
Provided, however, that nothing in the preceding provisions ofthis subsection shall be construed or deemed to debar anycompetent court from ordering the production of, or from inspecting,or from authorizing the inspection of, any such packet or documentat any time within the period of six months specified in thatsubsection."
After the votes had been counted, at the commencement of thecount of the preferences, some or all the Independent Group can-didates requested their leader, the 3rd Respondent, that they and/or their counting agents be permitted to be present at that count.He told them that according to the instructions issued to him by theAppellants an individual candidate and/or his agent could not bepermitted to be present at the count of the preferences. Accordingto a circular (2R1) dated 2.5.91 issued to all parties and groups, onlytwo counting agents could be present at each counting centre, andno candidate had a right to enter a counting centre by virtue onlyof his candidature. The petitioners state that their leader did not showthem 2R1. The Petitioners refrained from stating how manycounting agents had been permitted for each party or group ; itwas averred that their agents had no opportunity to ensure thatpreferences were correctly recorded, and that the count took placein five different rooms. However the 2nd Appellant stated in hisaffidavit that the count took place in six rooms, and that each partyor group had been allowed two counting agents for each room, makinga total of twelve. The 2nd Petitioner was one of the Group's countingagents and it is therefore clear that there was no absolute prohibitionon candidates being present at the count.
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Having counted the votes from 8.00 or 8.30 p.m. on 11.5.91, thesame officials proceeded to count the preferences from some timein the morning of 12.5.91 till 4.00 p.m. that evening, with short breaksand intervals for meals etc. Since each ballot paper could havepreferences for three different candidates, ballot papers could not besorted into bundles according to preferences and then counted.Instead, the preferences indicated in each ballot paper had to beseparately recorded on sheets of paper. The Petitioners stated thatone group of officials had read out the preferences while anotherrecorded them ; the 2nd Appellant stated that the same official whoexamined a ballot paper recorded the preferences. There was nosuggestion of deliberate falsification of the results. It was submitted,however, and the Court of Appeal held, that either method “ wouldleave room for human error", and that ” the likelihood of such erroris made greater by the fact that the officials were involved in theprocess of counting nonstop for long hours “. (However the Petitionersdo not claim that any protest or complaint had been about thesematters, then or later.) The Court of Appeal went on to hold thatthe need for vigilance by the candidates was, for that reason, enhanced,that if candidates or agents were permitted to be present, any erroron the part of the relevant officials may have been detected andcorrected ; and that, in the absence of such a safeguard, the Petitionershad just cause to complain with regard to the declaration based onthe count of preferences.
A recount was not demanded. However, the Court of Appeal didnot consider this to be a serious lapse. When the Ordinance wasamended in 1977, section 63(6) provided for the preparation of onewritten statement as to the votes cast, and section 63(7) enableda recount to be applied for before that statement was prepared.
However, when in 1987 section 63(6) was amended to providefor two written statements, section 63(7) was not amended andcontinued to refer to " a written statement referred to in subsection(6) the Court of Appeal took the view that this expression referredonly to the first statement, and rejected the submission that thesingular includes the plural, and therefore section 63 (7) now referredto both statements. It held further, that even if that construction wereto be adopted, the question would arise as to who may seek sucha recount ; counting agents represent the interests of the party orgroup, and not of the individual candidates, who are rivals in regardto preferences, and they are not the appropriate persons to demanda recount; had the candidates or their agents been permitted to be
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present, the power of the counting officer to recount preferences couldhave been exercised on the application of a candidate or his agent,in these circumstances, the failure to demand such a recount undersection 63(7) would not justify denying relief to the Petitioners.
According to the 2nd Appellant (supported by the two AssistantReturning Officers), the result had been declared under and in termsof section 65 at 8.00 p.m. on 12.5.91 ; it is common ground thatno agents of the Independent Group were present at those proceed-ings, and the Petitioners had failed to give any explanation for thisomission. The Petitioners allege, however, that there was a delayin officially declaring the result of the count of the preferences ofall the contesting parties and groups, and accordingly they met the2nd Appellant on 14.5.91. They claim that the 2nd Appellant readout the name of the candidates of the Group and the number ofpreferences received ; they pointed out certain errors and inconsist-encies, whereupon the 2nd Appellant summoned some officials, calledfor " the Negombo File “, perused it, made certain amendments,and read out the list again. The Petitioners then observed that inplace of three candidates previously said to have been elected threeothers had been substituted. They made a request for a recount,which was immediately refused, with the observation that their remedywas to apply to court. Subsequently, all 28 candidates (including thosedeclared elected) wrote to the 1st Appellant, with copy to the 2nd• Appellant, on 25.5.91 seeking a recount ; to this they received noreply. On 21.6.91 they filed this application in the Court of Appeal.In the “ Lankadeepa " of 15.5.91, the results were published in thesame manner as allegedly first read out -by the 2nd Appellant ori14.5.91, and the " Dinamina " of 16.5.91 published the results asfinally announced. The Court of Appeal accepted the Petitionersversion of the events of 14.5.91 and held that there had been “ aserious irregularity in the declaration of the results of the preferencevotes it rejected the version of the 2nd Appellant corroboratedby the affidavits of the two Assistant Returning Officers, that all hedid was to give the Petitioners a copy of the results declared on12.5.91 (which was prepared for the purpose of section 66), that nocorrection had been made, and that the result had not been readout at any time.
The Court of Appeal held that “ the Petitioners have made outa formidable case on the basis of a lacuna in the legislation, illegaladministrative action in the matter of issuing circular 2R1 whichworsened the adverse impact of the lacuna in the legislation, the
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manner of counting, and a serious irregularity in the declaration ofthe result of the preference votes Before coming to this finding,the Court did not exercise its undoubted power, under the provisoto section 67 (4), to call for and inspect the sealed packets whichshould have contained the statements prepared under section 63(6)and the journals maintained by the counting officer and the returningofficer. We were informed that the Appellants had brought these tocourt and that their Counsel had invited inspection, but that learnedCounsel for the Petitioners had ignoed this opportunity. The Courtof Appeal found it unnecessary to consider relief by way of Certiorari.It took the view that the Petitioners were not challenging the electionof any of the Group's six candidates who were declared elected, butwere " merely seeking a verification by way of a recount as to thewhether the result that had been declared was correct". Having citedWade (Administrative Law 6th ed. page 652) :
" within the field of public law the scope of mandamus is stillwide and the court may use it freely to prevent breach of dutyand injustice ”.
and R. v. Hanley Revising Barrister (1), 518 at 529:
" Instead of being astute to discover reasons for not applyingthis great constitutional remedy for error and misgovernment, wethink it our duty to be vigilant to apply it in every case to which,by any reasonable construction, it can be made applicable ", theCourt observed that the purpose of the Ordinance was to ensurethat the result declared was a fair and accurate reflection of thevotes cast by the electorate ", and that election officials" have apublic duty to make and declare a fair and accurate result of thevotes that have been cast by the electorate ", and concluded:
" the Petitioners and the other candidates were not satisfiedwith the count and the declaration that have been done and madea request for a recount to the 1st and 2nd (Appellants). ThePetitioners have in this application substantiated the legal andfactual basis on which they made that request. I am of the viewthat the failure on the part of the 1st and 2nd (Appellants) to reply
that request amounts to a refusal to perform a public duty
In my view the case of the Petitioners for a recount is wellfounded."
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v. George Ivan Appuhamy and Others (Fernando, J.)411
A writ of Mandamus was granted, as prayed for, with a furtherdirection that, if the result of the recount was the same, the Petitionerswould not be entitled to any further relief ; if However, the result wasdifferent, the Appellants were required to make a declaration on thebasis of that result which would supersede the declaration alreadymade. It would seem, therefore, that the Court of Appeal did notconsider the aforesaid defects and irregularities in procedure, to beof such a nature as to warrant a finding that " the declaration alreadymade " was vitiated by want or excess of jurisdiction, or error of law,or otherwise, but merely that declaration should be annulled only ifthe recount disclosed a different result. That hesitation to grantCertiorari is, with respect, significant.
The circular 2R1 does not contain an absolute prohibition on theadmission of candidates to the count, although the 3rd Respondentappears to have misled his fellow candidates in that respect; it merelyrestated that which is implicit in section 62(1), that a candidate, quacandidate, was not entitled to admission. The fact that the 2ndPetitioner who was appointed a counting agent was permitted to bepresent at the count, although he was a candidate, establishes thatthe counting officer too, did not regard 2R1 as imposing an absoluteprohibition. It was neither ultra vires nor an improper restriction ofthe counting officer's discretion. It is clear beyond doubt that norequest had been made to the counting officer to permit candidatesand their agents to be present at any stage of the count, either asof right or as a matter of discretion, and consequently that there wasno refusal of any such request. The allegation that because officialsworked long hours, errors in the count were likely, has not beenestablished. Since the count commenced at 8.00 or 8.30 p.m., theseofficials would have reported for work some hours earlier – and thiswould probably have been recorded in a (now sealed) official journalor record. It is admitted that they did have short breaks for rest andrefreshments ; after the count of the votes there may well have beena break before the count of the preferences commenced to enableother officials to attend to various formalities. The available materialdoes not indicate that the officials worked for such an intolerably longperiod or in such a way as to impair their efficiency. Here again,had this been a genuine apprehension, and not an afterthought, thecounting agents might have requested an interval for rest, and if thiswas refused, they could have insisted upon their complaint beingrecorded in an official journal. Similarly no complaint was made inrespect of actual errors, or suspected errors, in the recording ofpreferences. There is no suggestion that the procedures adopted were
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in any way different to other elections based on the P.R. system,and the Appellants have stated that the same procedures wereadopted at 90 centres in the Gampaha District. If (as the Court ofAppeal held) it did " leave room for human error “ that possibilityexists in regard to every system of counting, as it does in all humanactivity. A fancied possibility of error is not sufficient to vitiate a count; there must be material pointing to probability of error, based upongrounds from which such an inference could reasonably be drawn.Had the 2nd Petitioner or the other counting-agents entertained areal apprehension, they would probably have demanded a recount,whether entitled thereto or not. It is inconceivable that the 2ndPetitioner, who says he promptly demanded a recount on 14.5.91when he perceived some irregularity in the declaration, would haverefrained from acting in the same way on 12.5.91. His conduct leadsto the inference that he had not noticed any irregularity throughoutthe proceedings of those two days which he thought was worthspeaking etbout. This is reinforced by his unexplained failure to attendthe proceedings held under section 65.
In the scheme of the Ordinance, the declaration of the result bythe returning officer takes place in the proceedings under section 65(see section 65(2) (d) and (e), on the basis of the statements as tovotes and,preferences (prepared under section 63(6)). The returningofficer is thereupon required, under section 66, to publish a noticespecifying the names of the candidates elected, and to report theresult to the Commissioner of Elections, who will cause those namesto be published in the Gazette. There is no provision for any informalcommunication of the results, to candidates or otherwise, i.e. apartfrom the declaration^ under section 65(2), the notice under section66(1) and the Gazette notification under section 66(2). Even if the2nd Appellant did make an oral communication to the Petitioner on14.5.91, that was not in the exercise of his statutory functions ; itwas not the time and place of which notice had been given undersection 61(2). However, in a matter of that importance, the Court ofAppeal was obliged to look at the best evidence, without attemptingonly to determine which set of affidavits was more credible. The lawrequired that a written statement of preferences should have beenprepared under section 63(6), and by implication at least, that a writtenrecord be made of the declaration of the result under section 65 ;and both these official acts should have been done on 12.5.91 beforeany dispute arose. The Petitioners have not suggested that there wereno such documents, but refrained from joining in the request to theCourt of Appeal to examine the sealed documents. The Appellants
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thus made every effort within their power to make the best evidenceavailable to the Court. It must therefore be assumed that these officialrecords did exist, and an inference adverse to the Petitioners, andfavourable to the Appellants, must be drawn. The notice under section66(1) and the Gazette notification under section 66(1) have beenproduced. The crucial question which the Court of Appeal had todecide was whether these two notices were in conformity with theaforesaid written statement and declaration (and not whether thosenotices differed from one or more non-statutory oral statements madeby the 2nd Appellant after he was functus insofar as the declarationof the result was concerned). If they tallied, then there had been noerror or irregularity in the declaration of the result – regardless ofwhatever might have happened on 14.5.91. If there was a materialdiscrepancy between the two sets of documents, then undoubtedlya serious irregularity had occurred – and then it was unnecessaryto decide between the conflicting versions of the events of 14.5.91,because even if the Appellants version was true, yet that would notdisprove the irregularity. The failure of the Petitioners to support theAppellants invitation to the Court of Appeal to inspect the sealeddocuments, kept in the ordinary course of official election duty,overwhelmingly points to the conclusion that those documents werein conformity with the aforesaid notices under section 66. No irregu-larity in declaring the result has been established.
However, since the affidavits of the two Assistant Returning Officershave been expressly rejected – and that of the 2nd Appellant byimplication – it is necessary to consider the basis of that rejection.The Court of Appeal observed that, since the result had been declaredat 8.00 p.m. on 12.5.91, the visit of the Petitioner on 14.5.91 wouldnot have been of any significance to them ; that it was strange thatthese two public officers " happened to be present " when thePetitioners made an unannounced visit; and more strange how theyrecalled this visit at which, according to them, the two Petitionerswere merely given a copy of the result ; that it was unbelievablethat both officers could recall the events of that day “ in the samemanner so as to enable them to make two affidavits that are identicallyworded " down to names and initials, and even punctuation marksand grammatical errors. The Court concluded that " these officersmerely signed affidavits that had been prepared somewhere else ".However, the Court did not examine the joint affidavit of the twoPetitioners with the same stringency before accepting their versionas true. Thus the 1st Petitioner swears to matters of which heobviously had no personal knowledge (including the count of thepreferences which he did not attend) ; there are errors (for instance,
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that the result was declared by the returning officer, the 3rdRespondent – who was their own Group Leader) : no mention ismade of the circular 2R1 ; no explanation is given for the failureto make requests and complaints to the counting officer in respectof the several matters adverted to earlier. Had they sworn separateaffidavits, these would have attracted some of the same criticismsas the affidavits of the two Assistant Returning Officers. The presenceof the two Assistant Returning Officers on 14.5.91 was by no meansstrange ; it is not unlikely that various matters had to be attendedto, which could not be done on 13.5.91. Election duty not being aroutine function, it is not surprising that they remembered the visitof the Petitioners. Affidavits are generally not prepared by thedeclarants, but by a lawyer, usually the legal adviser for one party,in accordance with instructions given by the declarants ; if on therelevant matters the instructions were identical, the affidavits wouldnecessarily be identical, even in regard to the grammatical errors ofthe draftsman. There was no justification for the rejection of theiraffidavits, when truthfulness could have been immediately and con-clusively established by reference to the statements made undersection 63(6).
I therefore hold that the circular 2R1 did not absolutely prohibitthe presence of candidates at the count, or improperly restrict thediscretion of the counting officer, and that the Petitioners have failedto prove any probability of error in regard to the count of thepreferences, or any irregularity in regard to the declaration of theresult. It remains to consider the following questions of law in relationto the interpretation of the Ordinance :
Is there a lacuna in the Ordinance, in that in 1987 Parliamentinadvertently omitted to re-introduce the right of a candidateto appoint a counting agent (section 60), and to demand arecount (section 63(7))
In any event should the discretion of a counting officer undersection 62(1), as it stands, be execised so as invariably topermit a candidate and his agent to be present at the countof the preferences ?
3(a) Does the right to demand a recount (under section 63(7)) existboth in respect of the count of votes, and the count ofpreferences ?
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If so, does a writ of Mandamus lie where a recount was notduly demanded ?
If not, does a writ of Mandamus lie in respect of the refusalof a demand for a recount made (two days) after the declarationof the result ?
1. It will be seen that originally nomination and election were inrespect of a ward, and a candidate was entitled to appoint a countingagent, and the returning officer was obliged to permit the candidateand his counting agent to be present at the count; the returning officerwas responsible for both the count and the declaration of the result(for which there was no separate proceedings). Upon the introductionof the P.R. system, the nomination and the election were in respectof the entire electoral area (of the Municipal Council), and a candidatewas no longer entitled either to appoint counting agents or to bepresent at the count ; the election became very much a party affair,and the phrase " candidates and their counting agentsn was, it seems,deliberately omitted. The determination of the number of seats woninvolved some degree of computation after the counting of votes (cf.section 65(2)), and a two-stage process became necessary ; a (new)counting officer was responsible for the count (section 62), and thereturning officer for the result ; counting agents for the count, anda new and distinct category of agents for the proceedings undersection 65, all appointed by the party or group. Once it was deter-mined how many seats a party or group was entitled to, the iden-tification of the candidates to fill those seats was automatic; they weretaken from the nomination papers in order of priority. It is commonground that in this system it was both unnecessary, and unworkable,to have given a candidate the right to appoint agents to be presentat the count, or the declaration of the result, or to demand a recountHowever when in 1987 the system of determining the voterspreferences were given effect to, these provisions remainedunchanged. The Petitioners submission, which the Court of Appealupheld, was that previously the sole concern of a candidate was tosecure as many votes as possible for his party or group ; that hehad no interest adverse to his fellow-candidates ; but now he hada special interest vis-a-vis fellow-candidates in regard to the accuratecount, and recount, of his preferences. In that context it was urgedthat the omission to provide for the right of the candidate or his agentto be present, and to demand a recount, was an inadvertent omission.Had such provision been made, in each of the six rooms wherecounting took place on 11.5.91 there would have been 28 persons
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[1993] 2 Sri L.R.
representing the Independent Group ; if five parties and groups hadcontested, there would have been 140 agents present in each room.It is not unreasonable to suppose that Parliament did not desire tointroduce a system which would require drastic infrastructural andlogistical changes. Further, the basic assumption that candidates ofthe same party or group cannot agree on agents who would actimpartially as between one candidate and another is questionable;it assumes a degree of distrust and suspicion among candidates,which cannot reasonably be assumed to exist among members ofwhats essentially a team with common political objectives. To holdthat there is a lacuna would be to assume such distrust. Parliamentmust rather be presumed to have contemplated that candidates wouldagree on agents who would not be dishonest or partial as betweenone candidate and another.
I am of the view that Parliament deliberately refrained from makingreference to candidates in section 60 ; a candidate or his agent, notpresent at the count, could not be given the right to demand a recount,and accordingly in section 63(7) too, no reference was made tocandidates.
2. There being no lacuna in section 60, if the discretion of thecounting officer under section 62(1) were to be exercised to permitcandidates and their agents to be present, as a matter of course,the very situation which Parliament presumably desired to avoid,would arise. That discretion has to be exercised reasonably, havingregard to the exigencies of the count : e.g. to permit catering staffto provide refreshments for officials, or workman to attend to a powerfailure, or official observers or monitors verifying the fairness of thecount, and not to admit all candidates as a matter of course.
3(a). Section 63(6) originally contemplated one written statement. Atthat time, section 63(7) should, more correctly, have referred to " the[and not a] written statement referred to in subsection (6)". Hadsection 63(7) referred to " the written statement", then when section63(6) was amended in 1987 to provide for a written statement ofthe preferences as well, if it was the intention of Parliament that theright to a recount conferred by that section should be applicable toboth such statements, that expression would necessarily have hadto be amended to read either" a written statement “ or “ any writtenstatement ". Since section 63(7) already referred to " a writtenstatement " amendment was unnecessary. Section 63(7) confers aright to a recount in regard to both votes and preferences, but thatright is conferred on counting agents, and not on candidates.
sc
Chandananda de Silva Commissioner of Elections and Another
v. George Ivan Appuhamy and Others (Fernando, J.)
417
3(b). A recount was not duly demanded under section 63(7). Afterthe counting officer made the written statement of preferences, hewas functus officio, and could not make a recount either later thesame day or on 14.5.91 ; neither of the Appellants had any power,at any stage, to make or order a recount. Quite properly, the 2ndAppellant refused a recount on 14.5.91, correctly advising thePetitioners that their remedy was to apply to court. The fact that arecount was again demanded by letter dated 25.5.91, to which noreply was sent, is quite irrelevant : not only was the counting officerfunctus, but the 2nd Appellant had already refused a recount, andthere was no obligation to go on interminably replying to letters.While the failure to demand a recount at the proper stage may notalways be fatal, in the circumstances of this case, Mandamus didnot lie.
3(c). If on the other hand, section 63(7) means – contrary to myview – that there is no right to a recount of preferences before thewritten statement of preferences is made, then equally there is nostatutory right to a recount thereafter. The 2nd Appellant had no powerto order a recount and his refusal to do so was not unlawful, andMandamus did not lie.
Scope of his statutory duties, after he was functus in respect ofthat declaration ; his refusal of a recount on 14.5.91 was amplyjustified as he had no statutory power to order a recount (and, indeed,no one had that power on 14.5.91). The Appellants failure to replyto a further demand for a recount on 25.5.91 took the matter onfurther. Further, the conduct of the Petitioners, particularly their failureto make prompt complaints in regard to alleged irregularities and tojoin in the invitation to the Court of Appeal to examine the relevantdocuments, were factors relevant to the exercise of the Court'sdiscretion. Mandamus should not have issued.
For these reasons, I set aside the judgement of the Court ofAppeal and dismiss the Petitioners application with costs, in bothcourts, in a sum of Rs. 6,000/- payable by the Petitioners jointly tothe Appellants.
AMERASINGHE, J. – I agree.
KULATUNGA, J. – I agree.
Appeal allowed.