“Unlike some countries, there is no provision in our electoral laws for the delay allowed in determining an election petition. But justice delayed is justice denied”
There are several petitions pending determination by the Court following the general election of November 2019. Till now there is no indication when they will be taken up in depth, let alone when a determination is likely. What does the law provide for under these circumstances, and what can the Court do to expedite matters? Comparisons with similar petitions in the UK can shed light and perhaps guide local practice.
* Whatever happened to the electoral petitions lodged by Opposition candidates following the 2019 general elections? Could there be good reasons why it’s taking so long for these cases to be heard and justice delivered?
It is almost 18 months since the last elections were held. Under the Representation of the People Act, an election petition must be presented within 21 days after the date of the return made by the Returning Officer to the Electoral Supervisory Commission of the member to whose election the petition relates. In the case of Rodrigues, it is 56 days. That time frame is extended to 28 days when there is an allegation of illegal practice and 70 days for Rodrigues.
As we can see, the delay for lodging petitions is relatively short. By the time the petitions are determined, they would have lost their relevance.
In fairness to the Supreme Court, the country got bogged down in a lockdown last year and this year too owing to the Covid-19 pandemic. That does not however justify all the delaying tactics taken by the lawyers for the elected candidates and which seems to have been condoned by the Court.
* One would have expected that the electoral petitions lodged since 28 November 2019 would have been fast-tracked despite delaying tactics, if any. Isn’t that an instance of the checks and balances in our system not operating as they should?
Unlike some countries, there is no provision in our electoral laws for the delay allowed in determining an election petition. Procedural rules have to be followed. Each party must be given a fair chance to present its case. But, as it is often said, justice delayed is justice denied.
* What do past judgements delivered by our judges tell us about the attitude and approach of our Supreme Court towards electoral petitions?
The Supreme Court will not easily and readily upset the results of an election. The election results are after all the will of the people, and the Court will tread carefully and cautiously before upsetting the will of the electorate.
Having said that, the Supreme Court did invalidate the election of Ashock Jugnauth who was elected at the 2005 general elections following a case lodged by his rival Raj Ringadoo. He was accused of electoral bribery in the form of a promised new Muslim cemetery, and promising jobs to 101 healthcare assistants from his Constituency in exchange for votes in his favour. The Privy Council upheld the judgment.
In 1960, the election of Romriky Ramsamy who had defeated Gaetan Duval at the 1959 elections was invalidated on the ground that he did not inscribe his name properly on the Nomination Paper.
There had been also the case which took place after the 1963 elections. Michael Leal won the elections in Grand River North West but his election was challenged by Augustin Moignac, who came in second…
* There are a number of possible outcomes of an electoral petition. The result may be either quashed and a writ issued for a new election, or it may be upheld or the petition itself withdrawn. It’s also possible for such a petition to lapse should Parliament be dissolved before the petition process is completed. Without prejudging the decision of the Supreme Court, does it look like the last outcome is currently the most likely?
It must be noted that the Representation of the People Act provides that “no election shall be invalid by reason of a “non-compliance with this Act or any other enactment, where it appears that the election was conducted in accordance with the principles laid down in any other enactment and that such non-compliance did not affect the result of the election.“ So even if there has been a breach of the legal provisions, an election will not necessarily be invalidated unless the Court has no other choice.
* Shouldn’t the principle of “reasonableness” also apply in matters of electoral petitions in the same spirit as prescribed in Section 10 of our Constitution in relation to “Provisions to secure protection of law”, which states inter alia: “… the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established…”?
Delay in the determination of election petitions raises concerns among the legal profession and the public. An electoral petition is a civil proceeding. The Constitution states that a civil case just like a criminal one must be dealt with within a reasonable time. We have cases that have dragged on or still dragging on for years.
There are no checks and balances. In a few cases, the Privy Council has drawn the attention of the Supreme Court on the long delay in the determination of cases.
* Could it also be possible that our tolerance of suspected corrupt elections has become less over the years, and the people could not care less anymore about how long it takes for judgements to be delivered in such matters?
Remember what Cassius told Brutus in ‘Julius Caesar’: “Cassius: The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings.”
We are underlings vis-à-vis the powers that be – be it the government, the authorities, the judiciary. We are a passive people in quest of what benefits we can derive from the government of the day. You think people give two hoots about the electoral petitions and how long it would take to determine.
* In the UK, the May 1, 1997 election of Member of Parliament for Winchester, Mark Oaten (Liberal Democrat), contested by the Conservative Party candidate Gerry Malone, was declared void five months later, on 6 October 1997, by Lord Justice Brooke. Another legal challenge by the defeated Independent Rodney Connor (who lost by four votes and lodged a petition seeking a recount) against Sinn Féin MP Michelle Gildernew’s win in the Fermanagh and South Tyrone constituency was rejected by Northern Ireland’s Lord Chief Justice on 22 Oct 2010 – one month after the case began on 13 September 2010. What do such cases inform us about the British justice system’s approach towards electoral petitions?
British judges set their foot down and will not condone all kinds of nonsensical delaying tactics. It’s also true that the culture of British lawyers is different. The delays here are due to all kinds of objections that are raised by the opposing side. The more such procedural tactics are used, the longer it would take for the petitions to be heard. Should not the Court set its foot down?
* One interesting point to note is that pending the determination of the legal challenge against MP Michelle Gildernew’s general election win by Rodney Connor in the Fermanagh and South Tyrone constituency, Gildernew along with her Sinn Féin colleagues abstained from taking her seat at Westminster. Can we see that happening here?
Given the political culture that prevails in Mauritius, it’s very unlikely that this will ever happen.
* Published in print edition on 27 April 2021
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