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PUBLIC RECORD OFFICE

Reference :-

:

C.O.882/11

PUBLIC RECORD OFFICE, LONDON

| ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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First Schedule to the Ballot Act. 1872. But paragraph (3) allows both the candi dates and their agents to be present at the counting of the votes. Rule 30 is embodied in Act 68 (3). Article 67 (10) giving power to a Judge of the Supreme Court to order the inspection and production of ballot paper and other documents relating to the election is new, being founded on Rules 40 and 41 in the First Schedule (Part I) to the Rallot Act, 1872.

68. Article 68 reproduces Rules 27 and 30 in an expanded form. Article 68 (1) (e) is intended to state the law as laid down in Woodward v. Sarsons, L.R. 10. C.P. 733. Article 68 (3) expresses what appears to have been the intention of Rule 30 that the decision of the returning officer rejecting or allowing a ballot paper shall not be questioned on an election petition.

69. 70.

for "or

"

71.

72. 73.

Article 69 reproduces Rule 34 in the said Schedule II.

Article 70 reproduces old Article XL, the word "and" being substituted

so as to conform to Section 13 of the Ballot Act, 1872.

Articles 71 and 72 reproduce old Articles XLI and XLII. Articles 73 to 75 reproduce old Articles XLIII to XLV.

Article 76 reproduces old Article XLVI, the proviso to old Article XLVI (1) being omitted. The proviso is aken from Section 2 of 17 and 18 Vict. cap. 102. Its defect is pointed out in Rogers on Elections (19th Edition), Vol. II, at page 405.

74. Article 77 imposes a general penalty for the corrupt practices of persona tion, treating, undue influence, and bribery, which will he triable by a District Court instead of a magistrate. Personation is, as regards punishment, placed on the same footing as other corrupt practices. Following the English practice (Section 6 (4) of 46 and 47 Vict. cap. 51), conviction of a successful candidate for a corrupt practice will ipso facto avoid his election. But a prosecution will require the sanction of the Attorney-General.

Under Article 101 (3) a person reported by an election judge to have committed these offences will be under the same incapacities as if he had been convicted of the offence.

75. Articles 78 to 82 reproduce Rules 7 to 11 of the Rules dated 17th March. 1924. made by the Governor in Executive Council under old Article XXXVIII.

76. Article 83 reproduces Rule 13. 77.

Article 84 reproduces Rule 12. Paragraph (3) defining personal expenses

is taken from Rule 1.

78. Articles 85 to 88 reproduce Rules 2 to 5, Rule 3 (4) having been amended by the notification dated 8th May, 1924.

79. Articles 89 and 90 reproduce Rules 14 and 15, and part of the Schedule to the Rules.

80. Article 91 reproduces Rule 17. But illegal practices will be triable only by a District Court. The avoidance of the election by an illegal practice by the convic- tion of a candidate for an illegal practice is now definitely stated. Such avoidance was implied by Rule 17 which made the convicted person incapable of being clected a member.

81. Article 92 giving power for an election judge to excuse a corrupt or illegal practice is new, being taken from Section 22 of the Corrupt Practices Act, 1883.

The Attorney-General must now be given

82. Article 93 reproduces Rule 6. an opportunity of being heard.

83. Article 94 reproduces Rule 16. an opportunity of being heard.

84.

new.

The Attorney-General must now be given

Articles 95 and 96 enumerating the cases in which an election is void are

85. Article 96 (a) reproduces the law as stated in Woodward v. Sarons (1878) L.R.10, C.P.733. The words "or other circumstances" have been inserted to provide for serious floods and the like. Article 96 (b) corresponds to Article 70. Article 96 (c) reproduces old Article XXXIX as respects corrupt practices.

The conse- quences of an illegal practice are not definitely stated in the old Order, except that they are to be a ground for presenting an election petition (see old Article XXXVIII (3) and Rule 18 of the Rules dated 17th March. 1924). The expression "agent" has been substituted for "person who is acting under the general or special authority of such candidate with reference to the election" in order that it may be

apparent that

the English law of agency at elections applies.

86. Article 96 (d) reproduces Section 44 of the Parliamentary Elections Act. 1868, and provides a sanction for Article 79, no penalty having been provided for infringement of Rule 8 of the Rules dated 17th March, 1924.

87.

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The

Article 97 represents the first sentence of old Article XXXVII (2), power of the Chief Justice to nominate the election judge was conferred by the definition of "court" in Rule 2 of the Election (Legislative Council) Petition Rules, Article 97 (3) reproduces old Article XXXVII (3). Article 97 (4) is new. being founded on Section 30 of the Parliamentary Elections Act, 1868.

88: Article 98 represents old Article XXXVII.

1924.

(1) The time for presenting the petition is now incorporated in Article 102. 89. Article 99 is new. No provision is made for a reconnt as, by reason of Articles 68 (3) and 106 (old Rule 30 in Schedule II to old Order) making the decision of the returning officer as to the acceptance or rejection of ballot papers final, a recount would be confined to the mere enumeration of the papers.

90. 91.

Article 100 reproduces the remainder of old Article XXXVII (2). Article 101 requires the election judge to report the names of persons whom he finds guilty of corrupt or illegal practices, and attaches the same incapacities to a Under the old Order person so reported as if he had been convicted of the offence.

à candidate unseated for bribery is not disqualified for re-election unless he is prose- ented and convicted by a magistrate. The new Article represents the English practice, being based on Sections 4, 5 and 11, and 38 and 39 of the Corrupt Practices Art. 1883.

92. Article 102 reproduces old Article XXXVII (4). Article 102 (1) repre- sents part of old Article XXXVII (1), the time having been extended to 21 days. Article 102 (2) (a) is new. being founded on Rule 2 in Section 6 of the Parliamentary Elections Act, 1868. Article 102 (2) (b) and (3) and (4) reproduce Rule 19 of the Rules dated 17th March, 1924.

93. Article 104 stating how votes are to be dealt with on a scrutiny is based on Fraser on Parliamentary Elections (3rd Edition), page 224 et seq. But votes will not be open to challenge on the ground of a personal disqualification such as illiteracy of non-age.

94. Article 105 (4) incorporating the English practice as to election petitions on points not dealt with by the Rules is new.

95. Article 106 is considered to represent the present law. See Rule 30 in Schedule IT to the old Order. In view of the detailed provisions inserted in the draft relative to election petitions and illegal practices, old Article XXXVII (6) and Article XXVIII (4) giving power to legislate on these matters are omitted.

96. Articles 107 to 118 reproduce old Articles XLVII to LVIII. The words in Article 113 (2) ** Unless otherwise provided by rules made under Article 119 (2) will render it possible for a rule to be made by the Council to the effect that the votes of Unofficial Members of the Council shall be taken before the votes of the Official Members, a procedure which, I understand, is favoured by the Government.

97. As to Article 119, the rules and orders of the Council are now under revision by a Select Committee. If they are ready in time, it is proposed to print them in a Schedule to the new Order. Old Article LX is omitted. the practice of the Council for many years past having heen to remain in perpetual session.

98. The First Schedule reproduces the existing rules as to election petitions dated 16th May. 1924. with verbal alterations. Rules 29 (2). -(8) and (4) are new, being taken from Section 41 of the Corrupt and Illegal Practices Prevention Act, 1883.

L. H. ELPHINSTONE,

20th May, 1926.

Attorney-General.

The following table shows the manner in which the Articles of the Order in Council of 1923 have been dealt with in the new draft:-

No. of Article of

Order in Council

of 1923.

Corresponding Article

of new Druft.

1

2

3

IV

4

FERP

Tas had its effect

Remarks.

12