The December 13 deadline for Labour Party candidate to send his case to the Privy Council is nearing. As the latter has announced his intention to appeal the rejection of his petition in No. 8, his party leader has announced that he was withdrawing his own petition for No. 10. Here is how both Ramgoolam and Dayal were fighting two very different cases.
The difference between the two cases
Back on September12, Suren Dayal, the unreturned Labour Party (LP) candidate challenging prime minister Pravind Jugnauth in his home constituency of No. 8 in the 2019 election, was authorised by the Supreme Court to appeal at the Privy Council its rejection of his election petition back on August 12. The deadline for Dayal to organize and send his case to London is December 13. As Dayal announced his intention to go to London, his party leader Navin Ramgoolam announced in a statement released on October 6 that he was withdrawing his own petition contesting the result in No. 10 where he did not win a seat. Ramgoolam's petition was formally withdrawn on October 10. Explaining the decision to drop Ramgoolam's petition, LP argued that Dayal's petition that will be heard at the Privy Council was arguing "basically almost the same points that we raised concerning the petition in No. 10". Except of course in reality, the case Dayal is preparing for the Privy Council is very different from the one Ramgoolam was arguing in the Supreme Court.
Ramgoolam's contention
Ramgoolam's petition, demanding a recount in No. 10, essentially attacked the conduct of the elections with electoral commissioner Irfan Raman its main target. Ramgoolam's arguments, such as the electoral register improperly drawn up, leaving many unable to vote, did not appear in Dayal's case. Ramgoolam's lawyers raised the case of Bibi Nassimah Arlando who initially stated she could not vote because her name did not appear on the register. Until it emerged that her name was there (No KJB 149 registered at Ramnarain Roy Government School). A new argument that she could not vote because somebody else had already done so was rejected by the court. Out of the 6,813 people not registered for the 2019 election, only 289 such cases emerged in No.10: four because they were registered elsewhere and 285 because they were not registered at all. The Electoral Commissioner's Office (ECO) pleaded in court on April 29, 2022, that since 638 votes separated Ramgoolam from the last elected candidate, Sunil Bholah, that would not have changed the result.
The 'computer room' was another argument of Ramgoolam's petition, but it was absent from Dayal's one. The ECO's defence was that similar systems were used for the 2014 general elections, the 2015 municipal elections and the 2017 by-election in Quatre-Bornes. In other petitions, such as Ezra Jhuboo's, this argument failed because the courts determined that the 'computer rooms' simply announced results determined by the vote manual counting. Not otherwise. Other points in Ramgoolam's petition were in a similar vein - i.e., criticising the conduct of elections in 2019 - and totally absent from Dayal's.
Regarding the transportation of ballot papers to the counting centre in No.10, Ramgoolam initially argued that LP agents were not allowed on lorries transporting the ballot boxes. But in court that morphed into his party agents being allowed on the lorries, but forced to get off during the journey. Not surprisingly, this subtle shift in argument was rejected by the Supreme Court in an interlocutory judgement on July 28, 2021.
Ramgoolam's petition argued that he and his party agents were not told how many ballot papers were supplied to polling stations in No.10. According to the pleas rendered in court, out of the 982,200 ballot papers supplied for the 2019 election, 54,475 ordinary ballot papers were given for No.10. In court, it was argued that the number of ballot papers assigned to each polling station was available at the office of the senior presiding officer for any party to check. The Supreme Court ruled on July 28, 2021, that this argument was "an attempt at shifting the blame on respondent No.6 when in fact it was not only a right the petitioner enjoyed but also his responsibility to scrutinize the data which was readily available and accessible in the office of the senior presiding officer, had he taken the trouble to do so".
Regarding ballot papers from constituencies Nos. 3, 4 and 20 found outside polling stations after the elections - allegations mirrored similar ones made after the 1991 elections; the police opened an investigation, but little emerged in court to show how these three ballot papers had affected the election. Ramgoolam's petition also uniquely argued that ballot papers were printed by some instance other than the Government Printing Office. When pressed for evidence, in answers submitted to the court by Ramgoolam's legal team on February 17, 2020, it simply read: "No documentary evidence is available."
MBC: the common point
Both cases overlapped in only one way: they pointed to the role of the Mauritius Broadcasting Corporation (MBC) in the 2019 election. In his petition, Ramgoolam pointed to the MBC airing a segment in October 2019 accusing him of stealing funds from his own party and two days before the poll broadcasting a press conference by Somduth Dulthumun accusing Ramgoolam of insulting the Hindu community based on a truncated video on social media, while refusing to air a reply by Rajendra Ramdhean, then-head of the Mauritius Sanathan Dharma Temple's Federation. "The acts and doings of the MBC were directly attributable to an orchestrated campaign masterminded by l'Alliance Morisien and its leader to give to the latter an unfair advantage," Ramgoolam wrote in his petition. Ultimately, his case against the MBC failed in court because along with prime minister Pravind Jugnauth, he did not include MBC as a party in the case, the Supreme Court ruled on November 19, 2021, dismissing Ramgoolam's argument.
Dayal's petition raised the same points against the MBC, but unlike Ramgoolam's case, it was heard in court. But Dayal's argument failed because he could not show where Dulthumun in his press conference had openly instructed Hindus who to vote for, which is needed to establish an offence under the Representation of People Act. "In fact, the press conference made no mention of voting but was directed against the leader of the PTr for allegedly ridiculing and denigrating the Hindu community and for the need for him to apologise," the court ruled. Dayal pointed that the MBC had made much of government promises to hike the pension, that its bosses were hired by the government and that the ESC just slapped the MBC on the wrist by criticizing its election coverage. However, in its rejection of Dayal's petition on August 12 this year, the court concluded that Dayal had failed to prove his case.
The case Dayal is putting together for the Privy Council is a different beast from the one Ramgoolam has dropped. Dayal's case is no more consequential for Mauritian democracy than the disqualification of Ashok Jugnauth was. For a vindication of Ramgoolam's abandoned petition, it is not Dayal's appeal at the Privy Council, but rather Cader Sayed-Hossen's petition contesting the results in No.15 at the Supreme Court - the last remaining petition either not rejected or abandoned - that we should look to.
Dayal's arguments
Compared to Ramgoolam's case which criticised the way the election was organised, Dayal's petition was quite a different matter. In fact, the latter's case did not mention the conduct of the election at all, arguing instead that the election in No.8 - the home constituency of prime minister Pravind Jugnauth, Leela Devi DookunLuchoomun and Yogida Sawmynaden - should be declared void because of electoral bribery. In effect, what Dayal wanted to do through his petition was argue that Pravind Jugnauth's election should be nullified in a similar way that Ashok Jugnauth's 2005 election had been; the former health minister's election was nullified because the courts found that he had misrepresented a government decision to allocate a Rs2 million plot of land to enlarge a Muslim cemetery at No. 8, and getting his ministry to go on a hiring spree just ahead of the 2005 polls, hiring 101 out of 388 health care assistants from the constituency.
Dayal positioned his case in the same way accusing Pravind Jugnauth and the MSM of engaging in electoral bribery. A very different case from Ramgoolam accusing the ECO and the electoral supervisory commission (ESC) of not holding the 2019 election properly. So Dayal pointed to election promises of hiking the basic retirement pension eventually up to Rs13,500. Promises concerning the quick implementation of the Pay Research Bureau Report for civil servants, bonuses for police and firefighters or allegedly promising to abandon a 2017 agreement to reimburse Super Cash Back Gold policy holders Rs200 million and instead promising to pay back Rs3 billion instead.
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The court found no evidence of such an agreement and that argument did not work; essentially resting on statements by the activist Salim Muthy rather than anything coming from the government. In fact, Dayal's petition had a fundamental problem: while it accused the MSM of electoral bribery, it ignored similar tall promises made by the Labour-PMSD bloc during the 2019 election. In its judgement of August 12, 2022, the Supreme Court was quite scathing about this logical inconsistency: "He either did not answer or replied that two wrongs do not make one right or replied that the proposals of l'Alliance Nationale were part of its electoral manifesto whereas the proposals of l'Alliance Morisien constituted an electoral bribe. We must say that we were not impressed at all by the petitioner's astounding answers and double standards."
That same judgement rejected Dayal's petition, and it is on that same judgement that Dayal is appealing at the Privy Council. All this is to say that the cases of Ramgoolam and Dayal were very different beasts, targeting different enemies - Ramgoolam's petition did not even have prime minister Pravind Jugnauth as one of the respondents, while Dayal's did not include the ECO or the ESC as respondents - and wanting different things; Ramgoolam a recount in No. 10 for election irregularities, while Dayal wanted the election in No.8 to be declared null and void for electoral bribery.
This also helps explain why Dayal wants to go to the Privy Council; Ashok Jugnauth already set a precedent for overturning an election for electoral bribery. Whereas there is no precedent of the Privy Council ordering a recount in a Mauritian election over the nuts and bolts of an electoral process. Put simply, whatever happens with Dayal's petition at the Privy Council does not retroactively justify the allegations made in Ramgoolam's petition for the simple reason that these are really two very different cases, making two very different arguments and wanting two very different things.
