Don Amarasekera V. Rasiah

1950 Present . Nagalingam J.

DON AMARASEKERA, Petitioner, and RASIAH, Respondent

S. C-96 Application for a Writ of Mandamus on E. Rasiah

Local Option Rules-Rule 21-Manner in which ballot paper should be marked- Construction of words " in the space provided ".

Where a poll is held for the closure of taverns, a cross made on the reverse side of the ballot paper and not on the face of it cannot be held to comply with Rule 21 of the Local Option Rules. A ballot paper marked in this manner will therefore, be rejected, although in the ballot paper itself there is a direction to the voter to mark the cross " below ".

APPLICATION for a writ of mandamus in respect of a poll for the closure of a tavern

L. G. Weeramantry, for the petitioner.

Cur. adv. vult.

June 1, 1950. NAGALINGAM J.-

The question for determination in this case is whether the Presiding Officer was correct in rejecting certain ballot papers which were marked with a cross not on the face of the ballot paper but on its reverse. It has been contended that it is immaterial where the mark appears on the ballot paper so long as the intention of the voter can be gathered from the mark put by him. This contention is advanced based on dicta of English Judges in relation to Parliamentary and Municipal elections. In fact, assistance was even sought by calling to aid a decision of this Court in regard to Parliamentary Elections. I imagine, however, that the correct approach to a decision of the question is to look at the provisions of our law and construe those provisions, and if those provisions are plain, I do not think there is any necessity to have recourse to English or other precedents, unless the identical language of our law has been the foundation for the views expressed in other cases.

The provision of the law that needs to be construed is Rule 21 of the Local Option Rules 1[1938, Vol. 1, Sub. Leg. 309.]. This Rule prescribes the manner in which the

voter should record his vote and requires the voter in a case where a poll is held for the closure of taverns to make a cross " in the space provided " in the ballot paper if he wishes to vote for the closure and then fold the paper and place it in the ballot box. It will be seen that the Rule requires the cross mark to be placed " in the space provided ". The form of the ballot paper itself is to be found at the end of the Rules and on the ballot paper there is a direction to the voter as to what he should do in slightly different words and it runs as follows: " If you wish to vote for closure, mark a cross below." The words in the Rule, " In the space provided " have been substituted by the word " below ", in the direction contained in the ballot paper.

It has been argued that the direction to make the cross mark below means not only in the space that appears below the cage carrying the instruction in the three languages but also extends to the reverse of the ballot paper, which could also be regarded as a continuation of the space designated " below ". First of all, if one has to construe the words, " in the space provided " to be found in the Rule itself no argument would be possible that any place outside the space provided can be regarded as the space wherein the mark is to be made. In other words it cannot be contended that where the mark appears outside the space provided it is a sufficient compliance with the requirements of the Rule. But then, can it be said that merely because in the ballot paper itself the words " in the space provided" have been substituted by the word " below " a different construction is to be placed in regard to the direction contained in the ballot paper itself? I do not think so. The directions are in reference to the actual ballot paper itself, and we find that the ballot paper contains a space completely enclosed by four lines immediately under the instructions, so that in reference to the ballot paper

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