The hearings have concluded in Suren Dayal's petition to invalidate the election of prime minister Pravind Jugnauth, along with education minister Leela Devi Dookun-Luchoomun and former commerce minister Yogida Sawmynaden. Both sides narrowed down their final arguments this week as to why the Supreme Court should rule their way. So, let's look at the last-minute legal pitch from both sides, and how they grapple with Ashok Jugnauth's case.
A question of timing
The hearings into Suren Dayal's electoral petition have concluded with the Supreme Court now mulling whether or not to declare null and void the election of prime minister (PM) Pravind Jugnauth, education minister Leela Devi Dookun-Luchoomun and former commerce minister Yogida Sawmynaden over what Dayal claims was their engaging in electoral bribery in constituency No. 8 during the 2019 general elections.
This week, making their last argument in court, Dayal's lawyer Robin Ramburn laid down the three main pegs on which his case rested: firstly, electoral bribery referring to the announcement over hiking the basic retirement pension at the SVICC on October 1, 2019; the promise of pushing ahead the implementation of the next Pay Research Bureau (PRB) recommendations, with a one-off payment to civil servants while they wait for the report; and a bonus promised and paid to policemen, prison guards and firemen. Secondly, treating to food and drink at the SVICC meeting; and thirdly, the undue influence exercised by the Mauritius Broadcas- ting Corporation (MBC) over the election.
The timing of these promises was an important point raised by both sides during the hearing this week. "What is important, the crucial element which is striking is how come all these promises were in October and all of them were pecuniary promises. Nothing more. Nothing less," Ramburn argued at the Supreme Court. Referring to the announcement at the SVICC on October 1, 2019, by then PM Pravind Jugnauth to hike the pension ahead of the election, "no plausible reason has been put forward by the respondents (Pravind Jugnauth etc - ed.) of the urgency of making these promises, coming months after the budget, there was no change in circumstances, we did not become richer. They would have the court believe that everything was going smoothly; so, it wasn't as easy as they would imagine, which is why they needed to remove these promises from their armoury," argued Ramburn.
The date of the promise on October 1, 2019, was stressed on by Pravind Jugnauth's lawyer, Ravin Chetty. Put simply, he pointed out that although Jugnauth made the promise to hike the pension on October 1, the electoral campaign did not officially begin until October 6. His argument was that section 64 of the Representation of People Act (RoPA) does not cover promises made before an election campaign; "anything before cannot amount to an electoral bribe," said Chetty, adding that if the law covered promises made before an election campaign too, that would mean "that the government can at any time be accused of electoral bribery, any act of government would potentially be a corrupt act".
Judge Chan Kan Cheong, one of the judges deciding the case, stepped in to clarify Chetty's argument: Judge Chan Kan Cheong: "So it's only once parliament is dissolved, and the campaign starts that this can apply?"
This argument was pilloried by Ramburn: "If two years prior to an election he says I will give you a supercontract in return for supporting my campaign and voting for me, so just because the writ is not out yet, it does not apply? Common sense tells us that this cannot be."
The Salim Muthy issue
The other question that was brought up was Salim Muthy's testimony during the course of the electoral petition. On July 19, Muthy testified in court that he and Yousouf Sumodhee held a series of meetings with government officials on October 30 and 31, and November 1, 2019, over reimbursing investments made by policy holders in ex-BAI group's SCGB and BAML policies. Meetings that included PM's advisers Ken Arian and Rudy Veeramundar as well as financial secretary Dev Manraj. Muthy said that a document outlining the agreement had been prepared, but was not released by Veeramundar. This policy, Dayal argued, constituted another element of electoral bribery to woo the policy holders' votes.
Following Muthy's testimony, Jugnauth testified that there were no discussions because how much to reimburse SCBG and BAML policy holders had already been decided by the government on June 30, 2017. Although he added that at the time, Rs282.2 million still remained to be paid and that all he meant during his campaign was that these payments would continue. The PM testified: "I am not aware of any meetings with Salim Muthy or Yousouf Sumodhee."
But Jugnauth's legal case goes further, arguing that the Supreme Court should take action against Muthy. So, this week, in his closing arguments in court, Chetty insisted, "Mr Muthy confesses that he was bargaining with 75,000 votes. This is where we say this is an offense under section 64 (of the RoPA -ed.) and why the court should consider referring the case to the relevant authorities." Chetty also urged the court to disregard Muthy's testimony: "Why should the court believe the version of someone who confesses to blackmail," adding that his case rested on "an agreement that was never produced in court".
Now, Dayal's legal representative stressed to what extent the PM would claim that he did not know of the meetings between Muthy and Arian, Manraj and Veeramundar. The PM claims, Ramburn argued, that he was "blissfully unaware", before pointing out that "Mr. Manraj, Arian and Veeramundar are all appointed by him (Jugnauth -ed.). They are not civil servants. They are contractually appointed and responsible to him". Addressing the two judges directly, Ramburn stated that as both have been parliamentary counsels before, "you know how difficult it is to have a meeting at the PMO, you need an appointment and be taken directly to the office you want to go to, but Mr. Arian would have you believe that it was like a corner shop where you just barge in and have a meeting!" Coming to the government candidates asking the court to take action against Muthy: "I found it surprising that the respondent asked the court to take Mr. Muthy to task. Why did they not do it? Why are they waiting for your judgement?" Ramburn asked before adding, "and why is it that on the eve of the elections, suddenly the respondents woke up and decided to take care of BAI policyholders?"
Bringing in Ashok Jugnauth
Aside from the question of the timing of these pro- mises, or the veracity of Muthy's testimony in court, another question presented by both sides in their clo- sing arguments was to what extent this current petition differs from, or resembles, Ashok Jugnauth's case. In a sense, it is unavoidable that Ashok Jugnauth's case would cast a long shadow over the petition: more so than any other electoral petition, Dayal's case is focused almost entirely on alleged electoral bribery by Pravind Jugnauth, Dookun-Luchoomun and Sawmynaden. And it was unavoidable that the case of Ashok Jugnauth, who lost his parliamentary seat after being convicted of electoral bribery in the 2005 elections, should figure in the case.
Ravin Chetty laid great stress on how Dayal's petition is different from Ashok Jugnauth's case. To show this, Chetty argued that there is a difference between promises made to a specific category or class of persons. "If you are doing something that benefits a class of persons the presumption is that there is no corruption," Chetty maintained, "therefore corruption would be where that would benefit only a category of persons." Just what this argument means can be seen by the promises made by Ashok Jugnauth that led to his conviction by the Supreme Court in 2007 (and subsequently upheld by the Privy Council in 2008).
During the 2005 elections, Ashok Jugnauth made a number of promises in constituency No. 8 where he stood as candidate and was elected. In June 2005, the government decided to buy 2 arpents of land from Mon-Désert-Alma to expand the Muslim section of the Circonstance cemetery in St.-Pierre intended to woo Muslim voters in No. 8. The same year of the election, Ashok Jugnauth as health minister conducted interviews of 436 people from No. 8 to recruit them as general workers and that, as minister he recruited 388 people, 101 of whom were from his constituency, as health care assistants at his ministry. The difference, Chetty argued, was that Ashok Jugnauth was specifically targeting electors from his constituency; this was clearly different from what Pravind Jugnauth was doing when he promised to hike the basic retirement pension. "One can even argue that they are not even a class, but national measures that concern people throughout the country, not just the elderly in constituency No. 8."
This is the difference between Ashok Jugnauth's case and Dayal's petition that Pravind Jugnauth's lawyer wanted to stress at the Supreme Court: that Pravind Jugnauth's promises were not directed solely to voters at No. 8, unlike what Ashok Jugnauth had done. "One can simply replace the name of the respondents without changing anything else in the petition and it can be used anywhere... the net effect is that any candidate of the Alliance Morisien can be accused of committing the same crimes," Chetty posited, "nothing in the petition makes it exclusive to No. 8."
So, what was Dayal's response to this argument from Pravind Jugnauth's legal team? "My friend takes me to task by saying that the petition can be put on the whole of Mauritius. Well, my answer is that No. 8 is a part of Mauritius," Dayal's lawyer Ramburn retorted, "it is sufficient that promises were made."
Can a voter be asked to breach the secrecy of his ballot?
This was a question raised by Raouf Gulbul, who is representing the MBC, which Dayal accused of exercising undue influence during the 2019 elections and serving as a "propaganda machine" for PM Pravind Jugnauth. Among the points raised, was the press conference of Somduth Dulthumun criticising Labour Party leader Navin Ramgoolam just days before the 2019 election to woo Hindu voters to vote for the MSM. "Dulthumun was given prime time at 19 h 30 with a big sign saying Hindutva behind him. In the end saying that Navin Ramgoolam should present his excuses to the Hindu community. He did not have to say 'don't vote for him'," Ramburn argued, "the MBC did try to show that the leader of the petitioner's party was an unworthy Hindu. This amounts to spiritual injury."
In his closing argument, Gulbul argued that "there is no evidence that the Hindu community was influenced by Mr. Dulthumun". Now, Gulbul's argument against Dayal's petition essentially boiled down to this: Dayal needed to prove that voters were influenced by Dulthumun's press conference to make the case against the MBC. "There must be evidence of a voter called as a witness to say that he was induced into voting or not voting, was he compelled or influenced, do we have this? No evidence from at least one voter, Muthy, Ramdhean testified, but no elector was called. Not one," Gulbul hammered.
What is Dayal's response? The communique from the Electoral Supervisory Commission criticising the MBC. What about Gulbul's argument that Dayal needed to bring at least one voter to prove the case against the MBC? Ramburn pointed to section 46 (3) of the RoPA which states, "no person who has voted at an election, shall, in any legal proceeding to question the election or return, be required to state for whom he has voted." This, Ramburn said, was why they could not do what Gulbul criticised them for not doing. Judge Chan Kan Cheong: "You cannot call a voter as a witness?", to which Ramburn clarified, "You can but you cannot ask him for whom he has voted or not voted. This is to uphold the secrecy of the ballot."