Suren Dayal’s Election Petition

Qs & As

The Privy Council

‘One cannot anticipate the outcome of the case. Each case is decided on its own merits and depending on what the Law Lords make of the facts’

* ‘It is hard to understand why it takes years after an election to determine an election petition’

By LEX

In a small island where politicians, lawyers, judges and business community leaders rub shoulders formally and socially, where so many institutions are politicised and given the way some laws are interpreted, it is salutary, says Lex, that we still have the Privy Council as a supervisory court to set matters right and in their proper perspective whenever required, in addition to consolidating our jurisprudence.

* Is it possible to anticipate what the Law Lords of the Judicial Committee of the Privy Council (JCPC) may decide in the appeal lodged by Suren Dayal against the judgement of the Supreme Court, which dismissed his petition against the election of Pravind Jugnauth, Leela Devi Dookun-Luchoomun and Yogida Sawmynnaden? Are there trends that could indicate the direction in which the Law Lords would be likely to take?

No, one cannot anticipate the outcome of the case. Each case is decided on its own merits and depending on what the Law Lords make of the facts and how they will apply the law.

* The process of justice is supposed to be impartial, but Suren Dayal is challenging the election of, amongst others, the sitting Prime Minister of the current government. Could that be a consideration that may influence the decision of the Privy Council should it choose not to disturb the status quo at the level of the governance of the country?

Many people, including lawyers, believe that when a court of law is dealing with a sitting head of government or head of state, this might be something that judges would bear in mind. We are free to speculate, but we will never know if that’s indeed the case.

* But would you expect the Law Lords to go the way they did as in the MedPoint case?

Difficult to say. The turning point in the MedPoint case was the volte-face of the Independent Commission Against Corruption (ICAC), represented before the Privy Council by its director, Navin Beekarry, who filed a document to state that there was no case against Pravind Jugnauth. If the institution that filed a charge against an accused comes forward to state that its earlier decision was wrong and that the case should not go ahead, what can the court do? The issue in the MedPoint case was whether the sister of the Prime Minister had a personal interest in the matter, and this was what the Law Lords decided:

’40. The Board notes that the Independent Commission against Corruption, which initiated this prosecution, now accepts in its written case on this appeal that it is difficult to see how “an internal reallocation of payments source for the external contract” would be a decision in which Mrs Malhotra would have a personal interest.

’41. This is sufficient to dispose of this appeal. The prosecution has failed to establish that the defendant’s sister had a personal interest in the decision, an element of the actus reus of the offence contrary to section 13(2). However, it should also be noted that, by the same token, the defendant could not have had knowledge of the existence of facts giving rise to a personal interest in the decision in his sister, because there were none.

’42. For these reasons, the appeal will be dismissed.’

* The layman may sometimes wonder whether judges are or could be completely free of ‘predispositions, prejudices, and vulnerabilities that come from their own life experiences’ or other vulnerabilities. Both locally and at the level of the Privy Council?

To what extent does a judge’s personal views or opinions really shape the outcome of a case, and what should be done about it, that’s difficult to say. However, in a society where the media and general public are increasingly scrutinizing judicial decisions, judges and magistrates are expected to justify their decisions or risk facing public and even professional backlash.

* Besides the Crown dependencies and the United Kingdom Overseas Territories, Mauritius is one of the 12 Commonwealth countries which still use the JCPC as their highest court of appeal. Australia was one of the first in 1901 which established its own highest court for constitutional matters. India abolished appeals to the Privy Council in 1949 – two years after winning independence. Why did our political leadership decide to hang on to the Privy Council?

With the politicisation of so many institutions and given the way some laws are interpreted, it is salutary that we still have the Privy Council as the final court of appeal to set matters right and in their proper perspective whenever required. Many judgments of the Privy Council are living proof of this. For example, the Supreme Court held that the decision of the DPP is not reviewable, but the Privy Council held otherwise. 

Besides Mauritius is a small country where judges rub shoulders with politicians. This is not to say that they are at the beck and call of the Executive. But then the choice of certain judges to act on commissions of inquiry or to sit on international bodies may lead the public to suspect that some judges could be in the good books of a sitting government or of the Prime Minister. That may not be the case, but the perception could be there. The Privy Council is therefore a guarantee of the independence of the local judiciary.

* One could argue that the UK has, through the Privy Council, retained influence over Mauritius’ domestic affairs even after the country achieved independence. What’s your take on that?

Even if that can be substantiated, it is not true. The Privy Council decides the cases submitted to it and help to set right erroneous judicial thinking of the Supreme Court as well as shape our local jurisprudence. At times the Privy Council may even make recommendations on how the legislator should amend certain laws or how the Supreme Court should mange cases in order to reduce delay. All this is perfectly in order.

* A Presidential Commission, chaired by Lord Mackay, had recommended in 1997 the setting up of a Court of Appeal Section of the Supreme Court to which appeals from every level of court in Mauritius – the High Court Section of the Supreme Court, the Intermediate Court and the District Court – should be taken. This has not been implemented to this day. Is the time now ripe for our own Court of Appeal?

The Supreme Court should have a High Court and a Court of Appeal. It is high time that we have a Court of Appeal completely insulated from the High Court. What is happening now is like a musical chair. On one day two judges will sit on appeal on a case of their colleague. The next day the same judge whose judgment is appealed against will sit on appeal on a judgment given by one judge who sat on appeal on his own judgment. This is simply ridiculous.

* The slap down of the Supreme Court in the Betamax affair comes to mind. Is this supportive of a high court of appeal that is relatively dissociated from local considerations?

Of course. The Privy Council will very often refuse to interfere in aspects of a case by stating that the Supreme Court is more aware of local conditions. But in general, the Privy Council is totally dissociated from any matter – political or otherwise – that would influence their judgment.

* In the Resistans ek Alternativ case, were the Law Lords wise to have reckoned that ethnic representation in our Constitution is a matter better dealt with by the local body politic?

Yes. The Privy Council very diplomatically stated that they would not interfere in a matter that has wide political ramifications and therefore the matter must be decided locally.

* Is there a case to be made for a Constitutional Court or an Election determination court instance that could hear and expedite matters that cannot wait years?

In August this year, former judge Vinod Boolell wrote the following in l’express:

‘Mauritius has no constitutional court unlike some countries. In France, for example, there exists the Constitutional Council (Conseil Constitutionnel) which is the highest constitutional authority in France. One of the most important attributions of the Council is to determine whether a law passed by the French Assembly is in conformity with the constitution before it is even signed into law by the President of the French Republic. Milan Meetarbhan in his book on the Constitution has advocated the establishment of a constitutional court. Such a court with the power to determine the constitutionality of a statute before it is signed into law will no doubt be a salutary move on the rocky path towards the consolidation of democracy.’

As far as elections are concerned, it is hard to understand why it takes years after an election to determine an election petition. Is that done deliberately by lawyers who oppose the election petitions? Is that condoned by the Supreme Court? A Constitutional Court would be able to fast track such petitions.

* Are there other judgements of the Privy Council which have had a major impact on the governance of the country, on our judicial system, etc.?

These relate to many cases where the decisions of the Executive have been quashed especially in matters of tax and compulsory acquisition of property. These cases force those who run the country to bear in mind the factors that the Privy Council has discussed and determined. Let us hope guidance will also be given in election matters in the Suren Dayal case.

Mauritius Times ePaper Friday 25 November 2022