“The Law Lords would be very wary to interfere in the political process of the country”

Electoral Petition No. 18: Suren Dayal’s Appeal to the Privy Council

* ‘It is very rare that the Privy Council would interfere with findings of fact. It will only intervene on factual findings if these findings are perverse’

By Lex

The appeal to be lodged by Suren Dayal against the ruling of the two Supreme Court judges in dismissing his electoral petition raises some questions about what constitutes undue or unfair influence over voters. A narrow interpretation would allow any party the most populist pledges provided they were included in that party’s campaign manifesto. If to the educated layman such a situation could not have been cautioned by legislators, the provisions and interpretations of the law have to be tested in the more distant and ultimate court of appeal of the Law Lords. Lex weighs in with his legal views.

* Unreturned candidate in Constituency No 8, Suren Dayal has announced his intention to appeal to the Privy Council against the judgement of the Supreme Court, which has dismissed his petition against the election of Pravind Jugnauth, Leela Devi Dookun-Luchoomun and Yogida Sawmynaden. Can the petitioner expect to obtain a judgement of the Law Lords at the earliest?

If all the procedural requirements relating to an appeal to the Privy Council are done speedily, the lawyers may ask the Law Lords that priority be given for the hearing of the case. This may be agreed to by the British judges but not necessarily so, which is why it is difficult to say how long it will take.

* What are the chances of Suren Dayal obtaining a judgement overturning that of the Supreme Court delivered by Justices David Chan Kan Cheong and Karuna Gunesh-Balaghee?

If the Supreme Court came to wrong conclusions in law, the case may be overturned. But again, it all depends on what reading the Law Lords give to the findings of the local judges and how they interpret the provisions of our electoral law.

* In their judgement in the appeal lodged by Ashock Kumar 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…” Why is that so?

It is very rare that the Privy Council would interfere with findings of fact. Their cursus or ruling is that a local court is best suited to deal with factual issues as the court is more familiar with what goes on locally. The Privy Council will only intervene on factual findings if these findings are perverse in the sense that no reasonable person would have come to the conclusion found by the local court.

* What is to be expected from the Law Lords if the same principle of not challenging the findings of the Supreme Court on the basis of evidence and facts were to be adopted in an appeal by Suren Dayal?

Well, if the Law Lords find that the Supreme Court correctly appreciated the facts, then the findings will not be reversed. The next exercise is to determine whether on the facts as found by the Supreme Court it may be concluded or inferred that there was no bribery, treating or undue influence involved. 

* What if the two judges on the basis of facts and oral evidence adduced before them made erroneous interpretations in law or jurisprudence that might have been established in the Ashock Jugnauth case?

It stands to reason that if If the Privy Council finds that there was a wrong interpretation of the law and a wrong application of the law to the facts as found by the Supreme Court, they may reverse the decision.

* Does it mean that even if the findings of the Supreme Court might appear to be incorrect such as those relating to 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, it would still be very difficult to challenge those findings in an appeal to the Privy Council?

This is the strongest point in favour of Suren Dayal. The judges write in their judgment that it appears that the MBC applied double standards by allowing Mr Dulthumun to air his views 48 hours before polling day but declined to do so in the case of Mr Ramdhean. But they did not pursue the matter further.

It is appropriate to refer to what former Judge Vinod Boolell stated in that respect in an interview in l’Express last week:

‘It is quite difficult to understand why the court did not deal with those. Broadcasting the press conference of Mr Dulthumun 48 hours before polling day and yet declining to do so in the case of the press conference of Mr Ramdhean on the simple pretext that this would have been a breach of the guidelines issued by the Independent Broadcasting Authority. It would have been very useful to have the views of the court on this. Had the court delved more fully in that aspect of the case, it would have been very useful to see what impact, if any, this delving would have had on the outcome of the petition.’

* Could it be argued that the merit of Suren Dayal’s appeal lies in challenging the judgment of the Supreme Court, which might otherwise unwittingly open the floodgates for all manner of abuses during the next and future electoral campaigns by sitting governments of whichever political stripes?

The Supreme Court seems to have given to any sitting government the right to make all sorts of promises on the eve of an election and then argue by way of defence that the promises were part of their manifesto. As Vinod Boolell also stated in his interview:

‘On the issues of treating and bribery, it would appear that the court has given the green light to any sitting government to make as many promises as it can before polling day and then include them in an electoral manifesto without any risk of being accused of bribery or treating. This would be perfectly permissible in an electoral campaign.’

* What is to be expected if the appeal of Suren Dayal is not entertained by the Privy Council? Could they nevertheless make recommendations to strengthen our democratic process and reduce the delay to hear the case and render judgment?

Even if the Law Lords do not reverse the judgment, they might make recommendations. But it must be noted that the British judges would be very wary to interfere in the political process of the country.

* On the other hand, the Intermediate Court had on 15 Nov 2019 dismissed the charges slapped on Navin Ramgoolam for having allegedly “wilfully and unlawfully” accepted payment in cash in excess of an amount of Rs 500,000 in breach of sections 5, 7 and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002. What could be the best option for Navin Ramgoolam in light of the reversal of that ruling by the Supreme Court this week?

The option is to appeal to the Privy Council if possible. The legal issue that should be canvassed is whether a judgment that orders a retrial because some issues have not been dealt with by the trial court is a final judgment. You cannot appeal to the Privy Council till the time that  you have a final judgment.

* Could it be envisaged that the Intermediate Court would maintain its earlier decision if the case is referred back to it in light of the Supreme Court’s judgement?

The case will start all over again, and the new trial court is not and should not be bound by the ruling of the first trial court. The new court will have to deal with the matter in the light of the judgment of the Supreme Court.

* How long will it take for the Privy Council to sit on an eventual appeal by Navin Ramgoolam?

It depends on the length of time all the procedures are completed and that would include objections from the office of the DPP. It will also depend on the workload of the Law Lords, who also hear appeals from other jurisdictions.

Mauritius Times ePaper Friday 2 September 2022