Hearings are due tomorrow on the appeal of Suren Dayal at the Privy Council looking to invalidate the election of prime minister Pravind Jugnauth in the 2019 election. Here is how Dayal's case is so different from Ashok Jugnauth's, the only other electoral bribery case dealt with by the Privy Council. And why the implications of this case are less dramatic than it looks.
The origin of electoral bribery law in Mauritius
Tomorrow hearings will begin in the appeal of the Labour Party's Suren Dayal looking to invalidate the election of prime minister Pravind Jugnauth and running mates Leela Devi Dookun-Luchoomun and Yogida Sawmynaden in constituency No. 8 back in the 2019 election. The appeal is against the decision of the Mauritian Supreme Court on August 12, 2022, that dismissed Dayal's allegations of electoral bribery against the three MSM candidates. But before looking into the differences between the case that Dayal has taken to the Privy Council with that of Ashok Jugnauth - the only case of electoral bribery to succeed in court in Mauritian legal history - it is important to look at the origins of the Mauritian law on electoral bribery itself.
The part of the Representation of the People Act (RoPA) dealing with electoral bribery can be traced back to India. Specifically, the case of Raj Narain against Indira Gandhi, that precipitated the imposition of a state of emergency in India between 1975 and 1977. Narain contested the election of then-Prime Minister Indira Gandhi from her home constituency of Rae Bareilly in the 1971 election before the Allahabad High Court. In its decision, the court convicted Indira Gandhi of electoral malpractices such as using officials in the Prime Minister's Office to help her campaign and using state officials to help organize rallies and meetings.
While Indira Gandhi lodged an appeal against the judgement, at the same time she declared a state of emergency during which she not only cracked down on her political opponents but also retroactively changed election laws dealing with election practices and bribery. It was this amendment to Indian law that also led the then-Mauritian government to amend its own RoPA in 1976 to insulate Mauritian politicians from similar accusations of misusing government resources during an election and to try to prevent the deluge of (ultimately unsuccessful) election petitions that it had to face at the previous election.
The Ashok Jugnauth case
With Dayal looking to unseat a prime minister at the Privy Council, the parallels are obvious. But to gauge the likelihood of the Privy Council deciding in Dayal's favour, we should turn to Ashok Jugnauth's case, the only successful example of a prosecution over electoral bribery in Mauritian legal history. In that particular case, Raj Ringadoo, the unreturned candidate of the LabourPMSD bloc in the 2005 election, contested the election of outgoing health minister Ashok Jugnauth of the MMM-MSM coalition, once again in No. 8. Ringadoo's case rested on four main arguments. The first was the problem of the extension of a Muslim cemetery in that constituency.
The issue dated back from 2002 when then-Vice President Raouf Bundhun urged then-local government minister Joe Lesjongard to look into extending the Muslim section of Circonstance cemetery, which was full and causing problems to the community spread out in St. Pierre, Moka, Circonstance, L'Avenir and Dagotière. The idea was to get land from Mon Desert Alma Sugar Estate. Although it was agreed to sell off 2 arpents of land worth Rs2 million, the deal was soon stuck in legal trouble.
By 2005, the year of the election, the matter was once again brought back to the government. Just ahead of the election, on June 24, 2005, the cabinet took "note that the Ministry of Housing and Lands proposes to acquire a plot of land of 2 arpents adjoining Circonstance cemetery...". On June 29, the Movement Islamique du Centre organized a meeting in which Ashok Jugnauth spoke.
It is what he said at that meeting that proved to be the problem. Addressing the meeting, Ashok Jugnauth said that the government had already decided to buy the land from Mon Desert Alma for Rs2 million and extend the cemetery for free. This was clearly different from what cabinet had actually decided, which was merely to take note of a proposal coming from the housing ministry.
Unlike the other election petitions which involved criticisms of the election process itself, that of Dayal does not concern itself with these and is pretty much restricted to trying to pin down the prime minister on electoral bribery.
As the Supreme Court noted in its decision of March 30, 2007, "In making such an announcement, the respondent had deliberately misrepresented a decision of Cabinet and could only have done so with the intention of misleading and influencing the Muslim voters of constituency No.8, who constituted 10% of the voters, to vote for him and his party, in return for the land". So, when it came to the cemetery issue, the thing that clinched Ringadoo's case was that Ashok Jugnauth had misrepresented a government decision in front of an audience largely composed of voters in No.8.
The rule laid down
The other three legs of Ringadoo's case were largely similar: decisions made by Ashok Jugnauth as the outgoing health minister to recruit people into his ministry. In that case, as it turned out, in June 2005, his ministry interviewed 436 people from his own constituency of No .8 to recruit them as general workers, 266 people from No .8 to be hired as hospital servants and it actually recruited 388 people - 101 of whom were from Ashok Jugnauth's own constituency - as health care assistants.
When it came to this hiring spree just ahead of an election, the Supreme Court concluded that "the campaign was conducted not so much along the line of government performance but on the basis of "donnant donnant" where votes, individually or collectively, were exchanges for jobs in the civil service.". The decision of the Supreme Court was subsequently upheld in the Privy Council as well.
Out of the Ashok Jugnauth case, the understanding of electoral bribery in the Mauritian legal system; the first was the distinction between an electoral bribe and a promise in an election manifesto. "Making electoral promises or blowing one's own trumpet during an election campaign cannot be said to be corrupt practices of bribery.
Otherwise, there would be no need for a political campaign putting forward the electoral programme of the party which would be nothing more than promises which would be put into force once the party is elected or pointing out the achievements of the party when it was in power". The problem with Ashok Jugnauth was that neither the extension of the cemetery nor the hirings in the health ministry had anything to do with the MMM-MSM manifesto in the 2005 election.
This leads to the second part of the rule that was laid down: that such promises have to be specific to the candidate's election, rather than a pledge at the national level. The problem with Ashok Jugnauth was that whether it was the cemetery issue or the hirings in the health ministry, both were made directly, and largely exclusively, to voters in No.8, who were in a position to vote for Ashok Jugnauth directly. In other words, they were specific to his campaign in No.8, rather than part of the wider national campaign, nor did it feature in any party manifesto. This was a localized thing.
How the Dayal case is different
The current case of Suren Dayal is very different from the facts of the Ashok Jugnauth episode. Let us take the first two prongs of his case against Pravind Jugnuath, Leela Devi Dookun-Luchoomun and Yogida Sawmynaden. The first is the promise made on October 1, 2019 to hike the basic retirement pension to Rs 13,500 by the end of the current term.
Or to push ahead the Pay Research Bureau (PRB). In deciding the Suren Dayal case, the Supreme Court on August 12, 2022 upheld the rule laid down in the earlier case of Ashok Jugnauth and referred to the 2013 case of Subramaniam Balaji in India where the Indian Supreme Court argued, "the manifesto of a political party is a statement of its policy. The question of implementing the manifesto arises only if the political party forms a government. It is the promise of a future government. It is not a promise of an individual candidate... moreover, such corrupt practice is directly linked to his own election irrespective of the question whether his party forms a government or not".
The idea that voters would benefit financially is not enough. The Supreme Court outlined a number of such measures in the manifestoes of both the MSM-led alliance and the Labour-PMSD bloc in the 2019 elections; such as Labour promising to remove VAT in some products, reducing gas and electricity prices, raise the minimum wage to Rs10,000 or pay Rs2,500 a tonne to smaller planters for sugar cane. Or the MSM promising to do away with the municipal tax, give Rs100,000 to taxi owners to replace their cars or increase state subventions for medical treatment overseas to a maximum of Rs1 million.
Or the fact that both manifestoes contained similar promises when it came to the BRP or the PRB. Referring to Dayal's reaction to this conundrum, the Supreme Court notes, "he either did not answer or replied that two wrongs to 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".
This ultimately was the difference between the case of Suren Dayal and that of Ashok Jugnauth: whereas Ashok Jugnauth was promising and delivering things just to voters in No.8 who would vote directly for him as an individual candidate, in Suren Dayal's case, the promises of the BRP and the PRB were just part of larger electoral manifestoes and part of a raft of other similar measures and was not specific to just voters in No .8 voting for Pravind Jugnauth, Dookun-Luchoomun or Sawmynaden: "It was made openly in public to a crowd coming from all over the island, and not just constituency No.8 where the respondents were standing as candidates... it would then be a measure which would apply across the board to all old-age pensioners in the whole of Mauritius, not just constituency No.8, and whether an old-age pensioner had voted or not for the respondents or their alliance and whether he had voted in constituency No .8 or not".
Similarly, pushing ahead the PRB was not something being pledged exclusively by an individual candidate to his own voters in his own constituency, but a pledge at the national level. In short, these were not sops being doled out by individual candidates directly to people voting for them in their own constituency, but were election promises that were openly being made and not limited just to people in a position to vote for them in their constituencies.
Unlike the very specifically targeted promises and hiring being done by Ashok Jugnauth earlier. Hence, the Supreme Court's conclusion that Suren Dayal's case fell far short of the test laid out in the Ashok Jugnauth case. Suren Dayal's other argument; that of an alleged promise to pay investors in the ex-BAI's Super Cash Back Gold (SCBG) policies Rs3 billion fell flat because it relied solely on the testimony of Salim Muthy and not on announcements by the government itself.
Why the implications are not that big
THE problem with securing a favourable judgement from the Privy Council is that it's a long shot. Not only will Suren Dayal have to convince the Privy Council to abandon the rule it itself upheld in the Ashok Jugnauth case when dealing with electoral bribery cases and risk considerably watering down the legal understanding of it. But it would also involve the Privy Council abandoning its traditional unwillingness to overrule the Mauritian Supreme Court on political affairs in Mauritius.
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This was spelled out in the Ashok Jugnauth case in 2008 when the Privy Council itself stated that they "would be particularly hesitant about second-guessing the Supreme Court's assessment of the evidence and the inferences which the judges drew from that evidence in a case, like the present, where so much depends on local factors - the exact nuances of expression used by witnesses, the significance of racial divisions in the politics of Mauritius, the importance of civil service jobs for employment in Mauritius etc - about which the Supreme Court judges are inevitably much better informed than the board".
The odds become worse if we consider that in the Ashok Jugnauth case the Privy Council was upholding the decision of the Supreme Court to invalidate Ashok Jugnauth's election in 2005. In Suren Dayal's case, on the other hand, the Privy Council is being asked to overturn a Supreme Court decision dismissing Dayal's case and in the process dramatically re-interpreting Mauritian law relating to electoral bribery.
Even if Suren Dayal's case should, against all the odds, manage to secure a favourable judgement from the Privy Council, the implications are far less dramatic than it would first appear. For one thing, unlike the other election petitions which involved criticisms of the election process itself, that of Dayal does not concern itself with these and is pretty much restricted to trying to pin down the prime minister on electoral bribery. This leads us to a particularity in Mauritius election law: unlike the UK where somebody is found 'guilty' of electoral bribery, under Mauritian law an election is simply invalidated. In other words, whereas in the UK electoral bribery is described as a criminal offense, in Mauritius it's a civil matter.
What this means is that even following the Supreme Court and the Privy Council invalidating Ashok Jugnauth's election in 2005, that did not stop him from standing in the by-election that resulted from that case in 2009 when he lost against Pravind Jugnauth who won 52.46 per cent of the vote as compared to Ashok Jugnauth's 42.04 per cent. Similarly, should Suren Dayal's election petition succeed at the Privy Council, that would not stop Pravind Jugnauth from attempting to win back his seat again in a by-election, or simply contesting again in the next general election. That is, if the Privy Council can be convinced to dramatically depart from its own understanding of Mauritian electoral bribery law that it itself helped craft in Ashok Jugnauth's case. The ball, as they say, is now in the Privy Council's court.
