Law:

Section:

(a) National and Provincial Assemblies (Election) Act (VII of 1964) --Ss. 38,53,57 & 73 " Count " of voter Proposition that "count" of votes must be "finalized" under S.53 (stage of appeal before Election Commission) qua jurisdiction of Election Tribunal in an election petition under S. 57, read with Ss. 72 & 73, not supported - Counting of votes not outside purview of Tribunal. Per Cornelius, C. J.-Reference to section 73 of the National- and provincial Assemblies (Elections) Act (VII of 1964) will show that counting of votes, that is exclusion of invalid votes and inclusion of "valid votes which have been wrongly excluded, is not outside the purview of the Tribunal. Section 73 provides that when after the conclusion of the trial "it appears that there is an quality of votes between two or more contesting candidates", the Tribunal is to inform the Commissioner accordingly, who shall thereupon direct that a fresh poll shall be taken. This clearly implies that an inequality of votes has been reduced to an equality by inclusion of votes which should not have been rejected, and/or exclusion of votes which should not have been included, as a result of the Tribunal finding certain corrupt or illegal practices or illegal acts to have been committed. In the present case, the Fission question raised was as to whether ballot papers which included foreign objects should be excluded from the count under section 38, subject to appeal under section 53, for that reason alone The Member (Election Commission) was of the view that that reason was not sufficient, for it was necessary to produce evidence, of a design behind the collusion of such foreign objects, before they could be excluded. This clearly implied the requirement of proof of a corrupt practice or of an illegal act as indicated above. It was the view of the Member that he had jurisdiction to enquire into these matters and further he has used expressions indicating that it was proper that such matters should be taken before an Election Tribunal under section 57. If it were found that the ballot papers in question were tainted by corrupt practice or an illegal act, it would be for the Tribunal to exclude them…

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