“There is nothing preventing a candidate whose election has been invalidated from standing as a candidate…

until such time that he is found guilty after a prosecution

Election Petition and Invalidation of Election

* ‘Following the invalidation of his election, Ashock Jugnauth stood as a candidate at a subsequent by-election’

By Lex

Invited to comment on the legal aspects of the Suren Dayal appeal to the Privy Council, Lex draws the necessary distinction between this as a civil case rather than a criminal offence. The conviction required by law requires an inquiry to opened by the Police following a criminal complaint which, if undertaken, could drag on to the next general elections. However, it would be morally and politically more difficult for invalidated candidates to campaign for re-election

* An issue that is being extensively debated these days in some political quarters is whether a candidate found by the highest court, that is the Judicial Committee of the Privy Council, to have been guilty of bribery, treating, undue influence or personation, would subsequently be disqualified to stand as candidate in only that same constituency, or would that disqualification apply to all the other constituencies as well. What’s your take on that?

It must be made clear that an electoral petition is a civil matter governed by civil rules of procedure. This has been held time and again by the courts. A candidate whose election is invalidated on account of bribery, treating or undue influence is not convicted following the invalidation. The Privy Council itself held in the case of Ashock Jugnauth that an election petition is unquestionably a civil proceeding.

Besides, section 45 of the Representation of the People Act speaks of an election being invalidated on the ground of bribery, treating or any other reason and not found guilty. Following the invalidation of his election, Ashock Jugnauth stood as a candidate at a subsequent by-election, but he was defeated by Pravind Jugnauth who then had the support of the Labour Party.

* Section 63 of the Representation of the People Act clearly states that “every person who is convicted of bribery, treating, undue influence or personation, shall, without prejudice to any other punishment, be incapable, during a period of 7 years from the date of his conviction (…)”. The key word here is ‘conviction’. This would suggest that following the Privy Council’s judgement, a prosecution has to be started by the Director of Public Prosecutions to get the candidate convicted. Is that correct?

A person is disqualified from standing as a candidate for a period of seven years as from his conviction if he is found guilty of bribery, treating by a court exercising criminal jurisdiction. If the Privy Council invalidates the election on grounds of bribery and treating, it will be up to the Director of Public Prosecutions to advise prosecution after a police investigation. A complaint will however have to be lodged with the police. Who will make the complaint to the police? Is it the DPP? Is it Mr Dayal?

Even if a complaint is made, some may be of the view, rightly or wrongly, that the police which is perceived to be remote-controlled by the present regime, will take all the time they would want to until the next elections are over. Thus, the likelihood that a prosecution may not take place until after the next elections – if at all that were to happen. If, in the meantime, a by-election is held, one could expect the three candidates standing for re-election.

* One would expect that the test of whether there is a reasonable prospect of a conviction (should proceedings be instituted) would not apply in such a particular case following a judgement of the highest court, namely the Privy Council, and that the Director of Public Prosecutions would therefore move quickly to initiate the prosecution process. What if, for whatever reasons, the DPP decides not to do so?

The DPP cannot move quickly until and unless the police investigation moves quickly and the investigation file is sent to him. Even if the investigation file reaches the table of the DPP quickly, it will be up to him to prosecute or not. But if he decides not to do so, the people would want to know the reasons thereof. It would be advisable for him to explain his decision so as to ward off any negative perception about the independence of his Office.

* What would happen in the meantime? Would a candidate found to have committed an offence under the Representation of the People Act by the Privy Council be still eligible to stand as candidate until such time that he/she would have been formally convicted by a court of law?

There is nothing preventing a candidate whose election has been invalidated from standing as a candidate at a by-election or general elections until such time that he is found guilty after a prosecution.  

* Would the case of Ashock Jugnauth, found guilty in April 2007 by the Supreme Court of electoral bribery (in the form of a promised new Muslim cemetery and by promising jobs to 101 health care assistants from his Constituency in exchange for votes in his favour), which judgement was subsequently upheld by the Privy Council as a result of which he lost his seat in Parliament inform us about the eligibility or otherwise of candidates to seek their re-election?

Not really. What the judgment advises a candidate is what he should not do during an election campaign. Of course, a candidate must be cautious not to get involved in acts of bribery and treating during a campaign as he runs the risk of having his election invalidated and the risk of being prosecuted for these offences.

* At the end of the day, one could therefore conclude that a judgement of the Privy Council in a case of election bribery, treating, undue influence or personation would not amount to a conviction, right? For that to happen, the whole process requiring a police investigation and ultimately prosecution by the DPP would have to be started all over again?

Yes. The judgment in an election petition, which is a civil matter, is not a criminal conviction. The police would need to investigate. Will the police take the initiative to investigate? There must be some prompting by way of a complaint made by an interested party.

* Beyond the legal issues and local investigations or not, will any reversal of fortunes of the elected representatives in No. 8 three years ago, be mostly a matter of morality, ethics and public sanction for a perversion of democracy?

Of course, a candidate whose election has been invalidated by reason of bribery or treating should be deemed to be morally disqualified as opposed to being legally disqualified. It would be tantamount to a totally undeserving person seeking his re-election. How would such a candidate campaign as his initial election was obtained thanks to bribery and treating?

* To your knowledge have such major canvassed electoral issues in our local courts up to the Supreme Court been occasionally or frequently reversed at our jurisdiction of last resort, the Privy Council?

Election petitions are a rare phenomenon. The Ashock Jugnauth case is the first electoral petition to be heard by the Privy Council and invalidated on the ground of bribery.

Mauritius Times ePaper Friday 13 January 2023

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