Dayal’s electoral petition: ‘The Law Lords will not brook any nonsense about flimsy objections or delaying tactics’

Major Issues to Watch in 2023

Qs & As

By Lex

* ‘Any person found guilty of bribery, treating or undue influence will be disqualified to be registered as an elector or be a candidate for a period of seven years’

Lex shares his legal views regarding various questions of topical relevance for the judiciary, our democracy and the conduct of elections that are free and fair. There has been much speculation about the appeal lodged by candidate Suren Dayal to the Judicial Committee of the Privy Council and the potential impact of a ruling based on facts and their interpretation that is unfavourable to the three returned candidates from number 8 constituency. Lex also comments on the appointment of a new DPP and the Kistnen inquiry where investigations and relief for the victims remain bogged down by Police inaction.

* What will undoubtedly be a momentous event in 2023 is the much-awaited Privy Council’s judgement in the electoral petition lodged by unreturned candidate Suren Dayal against the election of Pravind Jugnauth, Leela Devi Dookun-Luchoomun and Yogida Sawmynaden in Constituency No. 8 at the 2019 general elections. When is the judgement likely to be delivered?

If the lawyers of Suren Dayal manage to convince the Law Lords that this is an urgent matter which has already suffered an inordinate delay at the level of the Supreme Court, and to give the appropriate priority to the appeal, then a judgment may be expected early next year.

Once the appeal is fixed, the law Lords will not brook any nonsense about flimsy objections or delaying tactics as has been the case over here.

* The lawyers of Suren Dayal will make their case and it will be won or lost on its merits. Could it be said however that elected candidates Jugnauth, Dookun-Luchoomun and Sawmynaden stand a good chance of winning their case? If so, on what grounds?

It all depends on whether the Law Lords will look at the case as one involving findings of facts or not. Even if they consider the case as one bearing on findings of facts, they may still intervene if they consider that wrong conclusions have been drawn from the facts. Or else they may look at the legal implications and see whether the local judges correctly applied the provisions of the Representation of the People Act.

* What do the Representation of The People Act and other laws related to this matter prescribe in terms of penal sanctions in case the MSM candidates were to lose their case?

Any person who is guilty of bribery, treating or undue influence under the Representation of the People Act, shall be liable, on conviction, to a fine not exceeding 2,000 rupees and to imprisonment for a term not exceeding one year.

In addition, any person found guilty of bribery, treating or undue influence will be disqualified to be registered as an elector or be a candidate for a period of seven years. But there must be a prosecution as the findings on an electoral petition cannot constitute a criminal conviction.

* It has been speculated that the Prime Minister could go for early elections within the next few months with a view to circumventing any unfavourable judgement of the Privy Council? Would an early dissolution end the legal appeal? If not, should the judgement come after the elections, will it have a bearing on the legality of the preceding government?

It is very difficult to speculate. A hint may be gathered from the arguments that would be submitted by the lawyer representing the Prime Minister and from the questions the Law Lords would raise. But again, this is only an indication and no hasty conclusion should be drawn from that.

Even if parliament is dissolved, this does not preclude the lawyers representing Suren Dayal from asking the Law Lords to give a declaratory judgment that would serve as a guideline for future elections. A judgment unfavourable to the Prime Minister and his colleagues may have a bearing on the legality of the government. The 2019 elections would stand invalidated from the very day of the proclamation of its results. The President is elected by the Assembly on a motion made by the Prime Minister. It’s the Prime Minister who recommends the choice of ministers. He also appoints people in many key institutions. What will be the fate of all those appointments?

* What is within the control of the local authorities is the conduct and organisation of the next elections. The Opposition has taken issue with the Computer Rooms put in place at Counting Centres for the 2019 elections and the opacity surrounding the functioning thereof on counting day, as well as the late hour counting of votes. Can the Opposition bring the Electoral Commission to revise the timing of the counting of votes and put an end to the recourse to Computer Rooms, defended as a “mesure administrative” by the Electoral Commissioner before the Court?

As far as the opacity surrounding the computer rooms, the Supreme Court ruled that this could not have any bearing on the counting of votes in the absence of any evidence that the computers were used for counting. This is what Justices Jugessur-Manna and D. Mootoo said in their judgement in the electoral petition of Ezra Jhuboo:

“The petitioner has failed to prove by way of cogent evidence on a balance of probabilities that there was any connection between the computer room and the physical manual counting process, the capitulation exercise and the official final results announced by the respondent number 6 and that the alleged opacity surrounding the computer room had any impact on veracity of the figures derived from the manual counting.”

If the computer rooms were not used for counting, why were they set up in the counting centres and what purpose did they serve? It would seem that for the Supreme Court the presence of the computers was a normal feature on counting day.

To avoid any suspicion surrounding the computation and counting of votes, this exercise must be done soon after the closing of the polls as is done in many countries. There should be no computers allowed and the manual counting process should be sufficient. The seals on the ballot boxes must be placed in the presence of candidates and broken in their presence.

* Can we also reasonably expect the judiciary to take a more proactive role in checking any abusive recourse to propaganda by the public broadcaster or to the dishing out of freebies in an election year?

No way. We have a conservative Supreme Court that would be wary of interfering in the election process. Even if a case is filed in court to put a stop to an abusive use of the MBC, for example, objections will be raised and rulings will have to be given. By the time the matter is heard and determined, much time will have gone by. That’s all the more reason why a special Constitutional Court should be put in place to deal swiftly with all these issues.

* What about the Electoral Supervisory Commission itself regarding unfair election practices?

All that the Electoral Commission can do is issue guidelines on how the election campaign should be conducted. Does the Commission have the will or the power to enforce such guidelines? What did or could the Commission do during the 2019 campaign regarding the abusive use of the MBC especially the broadcast of Mr Dulthumun’s comments on a statement made by Navin Ramgoolam while at the same time it refused a right of reply to Mr Ramdhean?

* Is the DPP Office likely to face some more testing times during 2023 and will those have a bearing on Rashid Ahmine’s declaration of intentions, in particular, with regard to public interest and the fierce protection of its independence?

It is an accepted fact that the DPP must act independently. The outgoing DPP Satyajit Boolell maintained that independence and he paid a high price from the hands of the government who wanted not only to strip him of his independence with the Prosecution Commission but also to arrest him. Rashid Ahmine will no doubt act independently, but one can never know how the present regime will act towards him. But he has to do his duty towards his country.

* The parting shots of the outgoing DPP included concern over the Criminal and Police Justice Act and the abuses being made of provisional charges. Should the latter be done away with entirely?

The problem is not with provisional charges. The Supreme Court has time and again held that the provisional charge that is drawn up on a document called Information is just a means of informing the court which charge there is against a person. The main issue lies in the power of the police to arrest an individual. It is the abuse made in matters of arrest that need to be looked into.

 * It has been a matter of concern that the police, after failing in their investigations regarding the murder of MSM activist Kistnen, have ignored any of the inquiring Magistrate’s recommendations or instructions and those of the DPP. What else could be done legally to protect the interests of those relatives who have been so unfairly treated?

As a rule, when a magistrate forwards his/her conclusions following a judicial inquiry to the DPP, the latter after studying the file may ask the police to investigate along certain well-defined lines. It is up to the police to comply with this directive. Now if the police refuse to comply, there is not much the DPP can do about it.

While some police officers tried to protect certain people in the Kistnen murder either because they were under orders or because of their incompetence as underlined by Magistrate Mungroo-Jugurnath… we do not know. But they totally missed out on an important aspect of the investigation, namely the interest of the victim’s relatives.

Mauritius Times ePaper Friday 30 December 2022