“It is inconceivable that the Dayal case should have taken four years to be determined by both the Supreme Court and the Privy Council”

Interview: Sanjay Bhuckory, SC

‘The process took three years in the case of Ringadoo’

* ‘The Law Lords offer a guarantee of independence and impartiality, not only to Mauritians, but also to foreigners who use our local jurisdiction’

* ‘The toothless watchdog that the Electoral Supervisory Commission is should be given the power to act’

Senior Counsel SanjayBhuckory has argued cases up to the Law Lords, most notably in the Raj Ringadoo case of electoral corruption against Ashock Jugnauth, which he won at both the Supreme Court and the JCPC. It was fitting therefore that we sought his impressions on the publicly telecast final stage of appeal in the Suren Dayal petition, asking him by the same token to elaborate on relevant issues of corrupt or undue influencing of elections and what urgent or necessary reforms should be brought to handle more efficiently electoral pleas at our leveland the continued reliance on the Law Lords as external appellate court.

Mauritius Times: The hearing of the appeal, and submissions of the different counsel, in the legal challenge of Suren Dayal of the election of Pravind Jugnauth, Leela Devi Dookun-Luchoomun and YogidaSawmynaden before the Privy Council has been the subject of various comments, but mostly not very appreciative of the submission of the counsel representing S. Dayal. From your own personal experience before the Law Lords, would you say those comments are unjustified?

Sanjay Bhuckory SC: It would not be fair for me to comment on the performance of the appellant’s counsel. Given that he is a luminary in the field of electoral laws, and the magnitude of the case, I can fully understand that expectations were running very high.

The live coverage of the Privy Council debates has permitted the whole world to watch the proceedings, whilst exposing the judges and the barristers to the public glare. It can be a perilous exercise, but it is necessary that justice be dispensed before as wide a public as possible.

I would propose that our important appeal cases be televised live, with a view to promoting transparency and accountability in the administration of justice, as well as raising the standards of the Bar. If we have introduced the camera inside the National Assembly, I fail to see why it cannot be introduced in our appellate courts as well.

* Various key points from the judgment of the Law Lords in the case Raj Ringadoo v Ashock Jugnauth before the Privy Council have been referred to in the submissions of the Counsel in the present matter. What is there in that judgment that could inform us in the appreciation of the facts in the Dayal v Jugnauth case?

I represented Raj Ringadoo before both the Supreme Court and the Privy Council. The Ringadoo judgment will certainly throw light on the Dayal appeal, inasmuch as it has drawn a clear demarcation line between normal electoral campaigning and a corrupt bargaining for votes: “A candidate does not fall foul of our electoral law against bribery where he is selling so to speak government performance or electoral programme or party manifesto to attract votes. That is normal electoral campaigning. The candidate must convince the voters why they should vote for him or his party.
“He will however fall foul of the law when he is involved in buying votes i.e., exchange vote for money or any other valuable considerations instead of using cogent arguments to influence the voters. There must be an element of bargaining and the corrupt motive will stand out so obviously from the facts.”

* In their judgment in the appeal lodged by Ashock Jugnauth, who contested the ruling of the Supreme Court, the Privy Council held that the ‘Supreme Court based its judgment to a significant extent on findings of fact which the judges made after due consideration of the oral evidence which they had heard and which they accepted.Normally, such findings would be very difficult to challenge in an appeal to the Board…’ Do you think the same principle will be applied in the present case?

Yes indeed, as the Privy Council will not lightly interfere with the findings of fact of the Supreme Court. In any event, appellant Dayal has not challenged the factual conclusions of the Supreme Court. His arguments are eminently in law, such that the Privy Council’s judgment will draw legal conclusions from admitted facts.

* What is, in your opinion, the key issue in the Dayal v Jugnauth case?

One of the key issues is whether or not the promise made by Pravind Jugnauth on 1 October 2019 at the SVICC, during a meeting with old persons, to double the Basic Retirement Pension, amounted to an electoral bribe, namely whether or not it was a promise to endeavour to procure a valuable consideration in order to induce electors to vote for him and his party.

* Should we take it that any electoral promise to endeavour to procure a valuable consideration made outside an election manifesto constitutes a corrupt one, but that it would not be so if it is mentioned in a manifesto?

The manifesto is but one of the several criteria, including the timing and circumstances of the promise, that will, according to me, have to be considered by the Privy Council.

The other question is whether the Privy Council will merely apply the legal principles enunciated in the Ringadoo case, or whether they will go further and establish a jurisprudence peculiar to the Dayal case.

It will be very interesting to follow the evolution of the law, as it will concern not only Mauritius, but the UK and the Commonwealth at large.

* There are the issues that have been argued before the Law Lords of what constitutes normal election promises as against unlawful promises, whether those promises are contained in the electoral manifestos or not and the timing of such promises. Would this suggest that the Representation of the People Act (RPA) does not provide a sufficiently explicit basis of what is proper or improper or even lawful or unlawful?

The RPA is celebrating its 65^th anniversary this year. It is high time that it be revamped and be adapted to our modern era of campaigning. The English counterpart of the RPA is very extensive and sophisticated, as compared to our outdated RPA. We should inspire ourselves from it and from other Commonwealth countries, whose systems have been tried and tested.

More importantly, it is inconceivable that the Dayal case should have taken four years to be determined by both the Supreme Court and the Privy Council. The process took three years in the case of Ringadoo. It is high time that a special division of our Supreme Court be dedicated to election petitions, and to constitutional plaints for that matter. These are matters where time is of the essence, as the very democratic fabric of the country is at stake.

In the Miller case, the time taken by a Divisional Court of three judges to hear the case and deliver judgment and for 11 judges of the UK Supreme Court to do likewise was less than a year. This timeframe should serve as an example and become the norm.

As far as the monitoring of electoral campaigns are concerned, our Electoral Supervisory Commission (ESC) is not, unlike its Indian counterpart, vested with the power to sanction and disqualify candidates, including Ministers, who fall foul of the electoral Code of Conduct. This should change: the toothless watchdog that the ESC is should be given the power to act.

* It is not known why the ground of appeal concerning the double standards applied by the MBC with regard to the coverage of a press conference by Mr Dulthumun 48 hours before polling day as against its refusal to broadcast that of Mr Ramdhean on the ground of breach of IBA guidelines was dropped.Could it be that the ruling of the Supreme Court as regards this particular point, even if incorrect, might be difficult to challenge before the Privy Council?

It would not be appropriate for me to surmise on the abandonment of the grounds of appeal relating to the MBC, and, for that matter, the “Super Cash Back Gold”. It is not uncommon for appellants’ counsel to do so, in order to focus on their stronger points.

As a matter of fact, I did so myself when I appeared before the Privy Council in the case of Shophold v MRA. I dropped four grounds of appeal, concentrated on a single one, and won my appeal.

* It may not be possible to anticipate what the Law Lords will decide in the appeal lodged by Suren Dayal, but are there trends that could indicate the direction in which the Law Lords are likely to take?

Our perception of what takes place during the hearing of an appeal may not necessarily be reflected in the final judgment. However, there is one pointer that may give an indication of the Law Lords’ feelings: it is the nature of their interaction with counsel. I was surprised that not as many questions were put to the appellant’s counsel as it is generally the norm. What more the exchange only scratched the surface of the issues raised, without going any deeper. This is not the norm.

* Suren Dayal is challenging the election of, amongst others, the sitting Prime Minister of the current government. Could that be a consideration that might 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?

This is totally out of the question, insofar as the Privy Council is concerned. Suffice to look at the 2017 judgment of the UK Supreme Court in the case of Miller. In that case, 11 Law Lords, being the same judges who constitute the Privy Council, unanimously struck down the then Prime Minister Boris Johnson’s attempt to prorogue Parliament in the wake of the Brexit vote to leave the European Union.

* What is to be expected if the appeal of Suren Dayal is not entertained by the Privy Council? Could the Privy Council nevertheless make recommendations on how to clarify the intent of the RPA or how to strengthen our democratic process and reduce the delay to hear the case and render judgement?

The role of the Privy Council is to apply Mauritian law as they find it. The Law Lords will be loathe to make any recommendation, as this might be perceived as an interference into the internal affairs of a sovereign country. A contrario, Judges Lam Shang Leen & Domah did, in the Ringadoo judgment, recommend that the ESC adopts an electoral Code of Conduct with a view to combatting corruption and building on the integrity in our affairs. This was subsequently done.

The ESC’s Code of Conduct is purely voluntary and was set up on an ad hoc basis prior to the 2019 general elections. Although the ESC does not have any power to discipline defaulters, the ESC did call the Mauritius Broadcasting Corporation (MBC) to order in October 2019 for its unfair treatment of the Mauritius Labour Party during certain of its TV news bulletins in the days preceding the general elections of 2019.

* 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. What’s your take on that?

It is highly regrettable that 25 years after Lord Mackay’s recommendation for a separate Court of Appeal, this has still not been implemented. Section 80(3) of our Constitution provides that the judges of the Courts of Appeal shall be ‘the judges for the time being’ of the Supreme Court.

It is a matter of great concern that, 55 years after our Independence, the transitional ‘judges for the time being’ have assumed a state of permanence, whereby first instance Judges are still concurrently acting as appellate Judges. Mauritius must be the only country in the world where such an incongruous state of affairs exists.

There is political consensus that we should put an end to it. Let us do it. Now!

* Being given that the Law Lords are distant from our social, legal and intellectual networks, is the time not ripe to do away with the Privy Council and replace it by our own Superior Court of Appeal?

It is out of the question that we should even contemplate this possibility: suffice to look at the sheer number of Supreme Court judgments that are quashed by the Privy Council.

That the Law Lords are foreign to the Mauritian reality is, far from being a disadvantage, a considerable asset. What more, their intellectual acumen is unsurpassed. Finally, they offer a guarantee of independence and impartiality, not only to Mauritians, but also to foreigners who use our local jurisdiction. So, let us leave well alone!

Mauritius Times ePaper Friday 14 July 2023