Private Prosecution against PK Jugnauth
Qs & As
* ‘ If Mr Jugnauth feels that the private prosecution is malicious or vexatious, his legal advisers will surely advise him on the remedy available to him’
Cases of private prosecutions are illustrative of a state of frustration with progress of official investigations but they are limited by the necessity of “locus standi” from aggrieved parties, and avoiding malicious, vexatious or cases whose merits are weak. This is where the office of the DPP plays its role although its recourse can only be guided by case files being forwarded to it by investigating agencies and recommending further enquiries, where required. No provision compels the latter to abide by such recommendations or to do so within a given time-frame. Lex shares his legal viewpoint.
* Magistrate Bibi Azna Bholah of the District Court of Port Louis has acceded to the application of Mr Suren Dayal to lodge a private prosecution against Hon Pravind Jugnauth for allegedly swearing a false affidavit in connection with his election expenses in Constituency No. 8 at the 2019 general elections. Would this be considered as a serious offence, if proved, and what could be the consequences for the charged party?
Under the Representation of the People Act, where any expenditure is incurred in contravention of the law by a candidate in connection with whose candidature it was incurred shall be deemed to be guilty of an illegal practice. Illegal practice is an offence and is punishable by a fine not exceeding Rs 1000. The convicted person shall, in addition, be incapable during a period of 5 years from the date of his conviction of being registered as an elector or of voting at any election or of being a candidate at an election, or, if elected before his conviction, of retaining his seat.
Swearing a false affidavit is a criminal offence under section 195 subsection 1 of the Courts Act and it reads:
“(1) Any person who swears a false affidavit where an affidavit is required or may be used, shall be liable to penal servitude for a term not exceeding 3 years and to a fine not exceeding 10,000 rupees.”
The offence is committed irrespective of the amount spent as it concerns false information in regard to electoral expenses. There is a duty on a candidate to submit his return of expenses as provided by section 56 subsection 5 of the Representation of the People Act, and it reads:
“(5) (a) Every return under this section shall be supported by a declaration sworn to before a Magistrate by the candidate stating — (i) that the return fully and accurately sets out all payments made by the candidate himself; and (ii) that to the best of his knowledge, information and belief the return is a full and accurate return of all expenditure incurred, and of all money, securities or the equivalent of money received by the election agent, in connection with the election.”
* How does Suren Dayal’s private prosecution of Pravind Jugnauth compare with that lodged by Simla Kistnen against former Minister Yogida Sawmynaden?
There is no difference though the offences are not the same. However, in the case lodged by Simla Kistnen, the latter on advice filed a provisional case, which was a bad strategy as a provisional information can only be charged by the police and is a means of justifying an arrest and taking the offender before a magistrate.
* We understand that the prosecution of a case depends on the evidence available that will stand the test of credibility in a court of law, and that even after an investigation, the police or the DPP may decide not to prosecute. Is that correct?
The DPP may intervene to put a stop to a private prosecution. This happened in the case where Bruno Laurette prosecuted two ministers in the Wakashio matter and in the Sawmynaden case. In the former’s private prosecution, in the absence of a thorough investigation, the required elements of the offence or offences alleged against the two ministers might not have been clear. Hence the decision of the DPP to stop the prosecution pending the completion of the police inquiry.
* Mr Dayal’s case is built on the basis of information contained in the documents of the so-called ‘Kistnen Papers’. The veracity of these documents will have to be determined, and that’s where Mr Dayal’s case may hit a wall, isn’t it?
The authenticity of the ‘Kistnen Papers’ will certainly have to be established before a court of law can act on them. If the DPP puts a stop to the case and asks the police to undertake further investigations, then of course this should be done.
But if the case, as it stands today, is allowed to proceed and the so-called ‘Kistnen Papers’ are produced in court, the defence may object on the ground that they are not authentic.
* What if the charged party were to put up the defence that the alleged election expenses in excess of the amount authorised by the Representation of the People Act would have been incurred by third parties without his consent? Wouldn’t that defeat the legal restrictions imposed on candidates as regards their electoral expenses?
Under section 55(2) of the Representation of the People Act, a candidate shall not be guilty of an illegal practice by reason of any other person having incurred any expenditure in connection with the candidature of the candidate unless it is proved that such expenditure was incurred with his consent.
* But before we reach that stage, what response is this private prosecution likely to elicit from the Director of Public Prosecutions?
We’ll have to wait and see. Apparently the Kistnen papers were handed to the police. Are they investigating? If they had investigated the matter and submitted their findings to the DPP, there might be no need for a private prosecution.
As mentioned earlier, the DPP may well put a stop to the case and ask the police to investigate, which means that we’ll be back to square one. However, without playing politics, it remains doubtful as to whether the police would be able to investigate cases involving a member of the majority party and less still the Prime Minister.
* It appears that the police had indeed started an investigation into the allegations of breach of electoral laws. Would it be correct to state that in these circumstances the police will be compelled to submit the conclusions of its investigations to the DPP?
They should be compelled, but do they feel compelled? Let us not forget that the DPP asked the police to investigate the Sawmynaden case after he put a stop to the case. We have not heard anything so far and we don’t know where matters stand.
* If a private prosecution were to be initiated in the Angus Road case by an aggrieved party, will the ICAC also have to submit the findings of its investigation into this case to the DPP?
An aggrieved party is someone who has suffered a prejudice following an offence. How will a person prove he is an aggrieved party in the context of the Angus Road saga? Here as well, it remains to be seen if the ICAC will submit the case file to the DPP.
* Could it be said therefore that the recourse to private prosecutions by aggrieved parties like, for example, in cases relating to alleged illegal electoral campaign financing, that is in excess of that permissible by law, could help overcome any resistance by the investigative authorities to conduct thorough investigations into such cases?
Not every private individual would be authorized by law to enter a private prosecution for an electoral offence. The individual must be an aggrieved party. Mr Suren Dayal, who stood as a candidate in the same constituency as the Prime Minister, does qualify as an aggrieved party.
* Though private prosecutions are considered by aggrieved parties as the only avenue for redress of injustice, they are sometimes regarded with suspicion given their potential for vexatious or malicious prosecutions. If such consideration were to be present in the private prosecution against Pravind Jugnauth for alleged illegal campaign financing, what would happen next?
If Mr Jugnauth feels that the private prosecution is malicious or vexatious, his legal advisers will surely advise him on the remedy available to him, which amongst others could be the filing of a civil case for damages.
* Published in print edition on 22 October 2021
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