HAULED BEFORE THE SUPREME COURT FOR AN ALLEGED BREACH OF THE ELECTIONS LAW

by Eric. J. de Silva

After four months in the Department of Agriculture as an Administrative Officer (May -August 1959) which included three months in charge of the Agriculture Office at Anuradhapura after the short period of on-the-job training I had in Polonnaruwa, I moved on to the Department of Elections as an Assistant Elections Officer, a post I had applied for along with the post in the Agriculture Department but with a higher maximum salary.

After a short orientation at the Head Office in Colombo, I was posted to its Kandy Office to under-study the AEO. in charge. In December 1959, within a few months of my joining the Department of Elections, Parliament was dissolved before it completed its full term and a General Election was fixed for March 1960. This resulted in the Commissioner of Elections deciding to keep me in Kandy to assist my senior colleague who was overlooking Kegalle district also at the time.

The results of the Examination held by the Public Service Commission in the latter part of 1959 for selection of cadets for the Ceylon Civil Service were released a couple of days after the Elections, and I was among the eight candidates selected. This meant I had to bid good bye to the Elections Department which gave me a wealth of experience that stood me in good stead in the years to come. (I should mention here the period I spent in the Colombo Kachcheri as Additional Government Agent during the run up to the General Elections of 1965 and the period I functioned as Government Agent Trincomalee during which period the General Elections of 1977 was held. In the message of congratulations, he sent me when the CCS results were announced, the almost legendary Commissioner of Elections, E.F. Dias Abeysinghe said that the Civil Service’s gain was his loss, a comment that I cherish to this day!

The Elections Department always used to call upon the services of its ‘old boys’ whenever the need arose in the conduct of elections. This was so even in respect of local government elections. There were many occasions when I too went on ‘election duty’ during the period I was a CCS cadet. In view of the dearth, if not total absence, of women in the public service, those appointed to serve as Senior Presiding Officers at polling stations were permitted to take their wives to serve as Lady Presiding Officers, their main function being to help women voters who ask for help to cast their votes.

LPOs were paid Rs. 30/= for their services which was enough money those days to buy a good, imported sari. I remember my wife always adding to her collection of Kashmir saris from the money she earned as an LPO!

Responding to such a request made by the Elections Department sometime in 1963 when I was working as an Assistant Secretary in the Ministry of Defence and External Affairs, I took up duties as Senior Presiding Officer at one of the two polling stations in a Colombo North Ward at the Colombo Municipal Council Elections held that year. I was accompanied by my wife who was to function as Lady Presiding Officer.

I was, in addition, appointed as the Counting Officer for the entire Ward. There were two polling stations for the Ward and this meant that after the poll closed, I had to wait for the other SPO to come and hand over the ballot boxes of his polling station to me. Counting commenced after he had done so and I had spelt out the counting procedure to the candidates and their agents who were present.

After the sorting, counting and bundling of the valid votes cast for each candidate was over, I had to check each bundle personally to make doubly sure that the bundles contained the correct number of votes that each candidate had obtained, and ensure that the final tally was correct. More than half way through the checking I stopped for a second to stretch my arms, telling in lighter vein to my wife (who was seated next to me) that one must avoid getting a back ache, and those who were close-by and heard me, enjoyed the light-hearted comment.

After everything was over, I asked the candidates and their agents whether they were satisfied that the count had been properly done as is the usual practice. Since no one expressed any dissatisfaction or reservation, I went on to announce the result. Having done so, I left for the Elections Office to hand over the counted ballot papers and everything else before getting back home.

A few weeks later I was informed that the candidate who had polled the second largest number of votes had filed action in the Supreme Court asking for a writ of quo warranto/mandamus on the grounds that I had turned down a request made by him for a recount because I had a back-ache! This naturally made news, although those who knew me hardly thought the story to be credible. However, it was now a matter for the highest court in the country to decide.

On the instructions of the Commissioner of Elections, I met Mr. H.L. de Silva, Senior Crown Counsel in the Attorney-General’s Department who got in touch with me and briefed him of what really happened that day. Having listened to me carefully and made notes of what I said, he put my mind at ease saying that it is unlikely that the court will believe the petitioner’s story but made it clear that I should not take things for granted.

It came to be known soon thereafter that the petitioner had engaged the services of Mr. S. Nadesan Q.C. one of our leading civil lawyers of the day well-known for appearing in elections cases, making it obvious that the stakes were high and that I should not take things for granted.

When I appeared in the Supreme Court a few weeks later, it was before a bench of two senior judges. Leading my evidence, the Senior Crown Counsel placed before court my background in the public service highlighting the fact that I had worked in the Elections Department before entering the Ceylon Civil Service and was quite conversant with election procedures, including procedures that have to be followed in counting of votes and declaration of the result.

When the cross-examination by the petitioner’s counsel started, I found him to be disarmingly courteous and this made me feel there was something up his sleeve! Having already taken me through some of my bio-data which the Senior Crown Counsel had placed before court, he asked me whether I was married. When I answered in the affirmative, he asked me whether we had any children. When I said we had a baby daughter he seemed almost delighted to hear it and proceeded to ask me what her age was. When I replied, he almost went on to complete the sentence saying with a look of concern on his face “and your wife would have been eager to get back home as soon as possible?”

I promptly replied, “No, not until we had finished the job for which we had come” and that was in fact so. Continuing (and looking up respectfully at the two judges on the bench), I said that there were enough persons at home to look after the child in our absence and, if that were not so, neither would my wife have come with me on election duty nor would I have thought of bringing her along with me. Making use of the opening I got I said my wife was not just a house-wife but a school teacher, and we had a very reliable maid to look after the child in addition to the fact that my wife’s aunt and sister lived with us at the time.

After a few more questions by Mr.Nadesan which was followed by a brief re-examination by Mr. H.L. de Silva, the court adjourned. A couple of weeks later I was informed that the court had decided that there was no need to proceed any further with the case.

(Excerpted from A peep into the past by Eric. J. de Silva)