Purity of the Electoral Process: Electoral Code need not be enacted

Irfan Rahman, our debonair electoral Commissioner addressing the Indian press, did not hide the fact that the great little country that Mauritius is has numerous lessons to learn on the organisation of elections from the Indian Sub-continent. I cannot agree more.

India has acquired a wide experience in organising elections since it became independent in 1947. Its Electoral Commission is a model of an independent institution with wide powers guaranteeing a free and fair electoral process. Does it mean therefore that we should adopt the same approach adopted by the Indian Electoral Commission when it comes to its electoral code of conduct? A legally non-binding code! A “bulldog sans dents”, as the Code of Conduct issued by the Mauritian Electoral Supervisory Commission for the Constituency of Quartier Militaire-Moka has been described.

The fact is that the Indian “bulldog sans dents” not only barks but apparently also bites. The Electoral Commission of India relies heavily on the premise that their Code is a unique document given “by the political parties unto themselves and is regarded internationally as a singular contribution by the political system in India to the cause of free and fair elections”. So much so that the Code has received judicial recognition by the Punjab and Haryana High Court in an electoral petition case (Harbans Singh Jalal V Union of India and Ors).

The publication of the Code in India gave rise to issues similar to the ones that are being raised presently in Mauritius. The question was put to the Commission on the importance of enacting the Code and on the need to provide sanctions in the event of its provisions not being complied with. In an interesting opinion given by the Commission, it argued that the bringing of the Code on the statute book would be a “self-defeating” measure.

The Commission was of the view that it would not be proper that each and every ill that affects the electoral process can and should be corrected only through judicial intervention. It considered the judicial process as being slow, cumbersome and ill fitted to resolve an issue which needed swiftness of resolution during an electoral campaign which can be as short as two weeks. The net results would be “a plethora of cases in various courts of law, which would have little relevance after elections as the parties which violated the Model Code of Conduct would already have reaped the benefits of those violations”.

The Commission on the other hand proposes the setting up of a conciliatory body constituted of the three electoral commissioners which will have the responsibility to consider how far the violation of the Model Code has distorted the level playing field between the contestants and what remedial action is immediately needed to restore fully, or at least substantially, the level playing field. This approach has the advantage of being able to act swiftly to remedy the violation, restore the level playing field by providing remedial measures and sanctioning same with the executive fiat of the Commission.

The South African electoral Code of Conduct for its part contains a number of binding elements that are necessarily legal, which almost has the feature of a legal regulation, to the point that it can be considered more as a law than mere guidelines to regulate the behaviour of electoral contenders. Electoral Courts are appointed in each province to ensure that the Code is applied and sanctions are given for any infringement of the Code. Likewise procedures for the processing of complaints for any breach are regulated by the Code. The Code also provides for a preliminary reconciliation without the need to resort to Electoral Courts. The Code also provides that the Courts should resolve disputes with efficiency, fairness and promptness. These dispositions as a whole undoubtedly imply a legal nature.

We may not have to go as far as the South African model. Our future Electoral Code should provide for its own complaint resolution mechanism under the chairmanship of the Electoral Commissioner. Such mechanism will have the benefit of being flexible and prompt in resolving complaints without resorting to long-drawn-out or complex, and onerous procedures. The Code should remain a priori a morally binding document which all parties and candidates will be expected to observe. They are mere guidelines and should remain so. The Electoral Commissioner should be trusted as having the ability to provide remedial measures within the framework of the Code.

The Representation of the People Act as amended has already provided under Part V for all possible electoral offences that one can imagine. The sanctions will understandably after adjudication lead to the disqualification of the candidate. There is on the other hand after the judgment in the case of Ringadoo V Jugnath a need to update the Act to clearly demarcate a petition from that of an offence arising during the campaign. The urgency claimed by some to statutorily enforce a Code is in my view unfounded.

Free and fair elections are essential ingredients of a democratic process. Sir Satcam (see ‘For the Love of My Country’) once described the general election as the “greatest show” in Mauritius. Sooner than expected the curtains will be raised and the show will begin. Let it be free and fair, the public will be the best judge.

R.V.