PC Appeal No 58 of 2007

IpsofactoJ.com: International Cases [2009] Part 1 Case 3 [PC]


THE PRIVY COUNCIL

(from the Supreme Court,  Mauritius)

Coram

Ashock K. Jugnauth

- vs -

Raj D.N. Ringadoo

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

LORD WALKER OF GESTINGTHORPE

LORD BROWN OF EATON-UNDER-HEYWOOD

LORD MANCE

5 NOVEMBER 2008


Judgment

Lord Rodger of Earlsferry

  1. In the period before July 2005 the appellant, Ashock Kumar Jugnauth, was the Member of Parliament for constituency no 8 and held office as Minister of Health and Quality of Life in the government formed by the MSM/MMM alliance. On 24 April 2005 the National Assembly was dissolved and on 9 May, acting in terms of section 41(1) of the Representation of the People Act 1958 ("the 1958 Act"), the President of the Republic issued a writ of election for a new Parliament. The date specified for the election was 3 July 2005.

  2. At the election the government was defeated and a new government was formed by the Alliance Sociale. Mr Jugnauth was, however, elected as the first of three members for the no 8 constituency. The other two elected were members of the Alliance Sociale. The respondent, Mr Raj Direvium Nagaya Ringadoo, was a candidate of the Alliance Sociale in the same constituency, but he ranked fifth in the poll and so was not elected.

  3. So far as relevant for present purposes, section 45(1) of the 1958 Act provides:

    (a)

    .... a petition (in this Act referred to as an election petition) complaining of an undue election of a member to service in a council on the ground that

    (ii)

    the election was avoided by reason of bribery, treating, undue influence, illegal practice, irregularity, or any reason,

    may be presented to a Judge in Chambers by

    (C)

    any person who alleges he was a candidate at the election to which the petition relates.

    (c)

    Notwithstanding this Act or any other enactment, an election petition shall not be presented against a member and the return or election of a member shall not be avoided on the ground that, in connection with, or in furtherance of, his candidature or for his return or election –

    (i)

    any act was done, services were rendered or expenditure was incurred by a public officer, a local government officer or an officer of a statutory authority or corporation where the act was done, the services were rendered or the expenditure was incurred either in the discharge or purported discharge of the officer's function or while the member was the holder of an office;

    (ii)

    any act was done, services were used or expenditure was incurred by the member where the act was done, the services were used or the expenditure was incurred while the member was the holder of an office.

    The term "council" is defined in section 2 so as to include "the Assembly". The same section also defines "office" in section 45(1) as meaning inter alia an office, appointment to which is made under section 59 of the Constitution. Section 59(2) provides for there to be, in addition to the offices of Prime Minister, Deputy Prime Minister and Attorney-General, such other offices of Minister of the Government as may be prescribed by Parliament or, subject to any law, established by the President, acting in accordance with the advice of the Prime Minister. Section 59(3) provides that the President, acting in accordance with the advice of the Prime Minister, is to appoint the other Ministers from among the members of the Assembly.

  4. It follows that, in the period running up to the general election on 3 July 2005, the appellant, Mr Jugnauth, as a government minister, held an "office" for purposes of section 45(1) of the 1958 Act.

  5. Section 64(1) of the 1958 Act provides inter alia:

    Any person who -

    (a)

    directly or indirectly, by himself or by any other person on his behalf gives, lends, or agrees to give or lend, or offers, promises, or promises to procure or to endeavour to procure, any money or valuable consideration to or for any elector, or to or for any person on behalf of any elector, or to or for any other person, in order to induce any elector to vote on refrain from voting, or corruptly does any such act or account of any elector having voted or refrained from voting at any election;

    (b)

    directly or indirectly, by himself or by any other person on his behalf, gives or procures, or agrees to give or procure, or offers, promises or promises to procure or to endeavour to procure any office, place, or employment, to or for any elector, or to or for any person, on behalf of any elector or for any other person, in order to induce such elector to vote or refrain from voting, or corruptly does any such act on account of any elector having voted or refrained from voting at any election;

    (c)

    directly or indirectly, by himself or by any other person on his behalf, makes any such gift, loan, offer, promise, procurement or agreement as is mentioned in paragraph (a) or (b), to or for any person, in order to induce such person to procure, or endeavour to procure, the return of any person as an elected member of a council or the vote of any elector at any election

    ....

    shall be guilty of bribery under this Act.

  6. On 22 July 2005 Mr Ringadoo presented an election petition under section 45(1)(a)(ii) of the 1958 Act, complaining that:

    ever since the dissolution of the National Assembly on 24 April, and at any rate since the issue of the Writ of Election on 9 May 2005, the respondent and his agents and persons acting on his behalf with his consent and knowledge have indulged in bribery, contrary to sections 45(1)(a)(ii) and 64(1) of the Representation of the People Act, in order to procure, promote and/or influence the election of the respondent in constituency no 8.

    The complaint raised four matters. The first arose out of what the appellant was alleged to have said, at a public meeting on 29 June at St Pierre in constituency no 8, about the availability of government money for the acquisition of land to provide additional space for the Moslem section of the local cemetery. The other three matters were broadly similar to one another and were treated together by the Supreme Court. They concerned exercises carried out by the Ministry of Health – of which the appellant was the Minister – to recruit three groups of staff in the period before the general election in July 2005. The three groups were General Workers, Hospital Servants and Health Care Assistants.

  7. After various procedural steps which it is unnecessary to recount, the petition was heard by two judges of the Supreme Court, P Lam Shang Leen and S B Domah JJ. In addition to documentary evidence, witnesses were examined and cross-examined. On 30 March 2007 the court found in favour of the petitioner, Mr Ringadoo, on all four matters. The court accordingly found that the election of Mr Jugnauth should be declared null and void for having been obtained in breach of sections 45(1)(a)(ii) and 64(1) of the Representation of the People Act. Mr Jugnauth appealed to the Board under section 48A of the 1958 Act.

  8. 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, but in the present case the appellant contends that the judges of the Supreme Court fell into error when, in making their findings, they applied the civil standard of proof, on the balance of probability, rather than the criminal standard, beyond a reasonable doubt.

  9. Before deciding to adopt the standard of proof on the balance of probability, the Supreme Court carried out a meticulous examination of authorities from around the Commonwealth. If the Board does not follow that example, it is only because the principles relating to questions of the standard of proof have been considered in two very recent cases in the House of Lords. Before turning to those decisions, however, like the Supreme Court, the Board thinks it right to point to a material difference between the relevant election legislation in Mauritius and in the United Kingdom.

  10. In the United Kingdom section 113(1) of the Representation of the People Act 1983 provides that "A person shall be guilty of a corrupt practice if he is guilty of bribery." Section 159(1) provides that "If a candidate who has been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void." In terms of section 168(1), a person who is guilty of a corrupt practice is liable to various specified penalties. So any decision by an election court that a member has been personally guilty of bribery entails two consequences: first, he is personally guilty of a corrupt practice and his election is void, and, secondly, the report of the election court, finding him guilty of the corrupt practice, is laid before the Director of Public Prosecutions (section 160(3)) and he must vacate his seat and is incapable even of voting in an election for a specified period (section 160(4)).

  11. Against that background, in R v Rowe [1992] 1 WLR 1059, 1068, Farquharson LJ indicated that the standard of proof in the trial of an election petition was proof beyond reasonable doubt:

    Some consideration was given during argument to the standard of proof required to establish a breach of the subsection. If a person is found guilty of a corrupt practice under section 115 he is liable to be prosecuted on indictment. Furthermore he may be the subject of severe electoral disqualifications under section 160(4) of the Act of 1983. If there is a prosecution there is no doubt that the case must be proved to the criminal standard of proof. What is the position before the electoral court hearing a petition complaining of corrupt practice? Mr Tolson submitted that the civil standard of proof should obtain before an electoral court otherwise elections which should be set aside may stand on the grounds that a corrupt practice had not been proved to the necessary degree of certainty.

    Although this issue has not been significant in this appeal in my judgment a person accused of corrupt practice before an electoral court should only be held to have committed it if the allegation is proved beyond reasonable doubt. The subsection refers to a person being 'guilty' of corrupt practice, and that connotes a criminal offence. It would not be desirable to have a different standard of proof in different courts on the same issue.

    Nolan and Parker LJJ, at pp 1069 and 1070 respectively, were of the same view.

  12. The approach of the Court of Appeal is based on the use of the word "guilty" in section 113(1) of the United Kingdom Act. Because of that expression, the issue is the same for an election court as for any criminal court: has the member been "guilty" of a corrupt practice? The Court of Appeal considered that, since the issue is the same, the standard of proof should be the same and, since the standard to be applied by a criminal court in determining guilt is unquestionably proof beyond a reasonable doubt, the Court of Appeal readily concluded that the standard to be applied by the election court must also be proof beyond reasonable doubt.

  13. In the case of the equivalent legislation in Mauritius, section 45, dealing with election petitions is found in Part III which deals with Elections generally. Section 45 envisages an election being avoided by reason of bribery, treating, etc. To discover what these terms mean, you have to look in Part V which deals with Election Offences. More particularly, what is meant by "bribery" is found in section 64(1) which creates the offence of bribery under the Act. And, of course, if anyone is to be convicted of bribery under the Act in a criminal court and punished in terms of section 66, he must be found guilty according to the criminal standard of proof, beyond reasonable doubt. Moreover, under section 69, a person who is convicted of bribery "shall, without prejudice to any other punishment, be incapable during a period of 7 years from the date of his conviction .... (b) of being a candidate at an election or, if elected before his conviction, of retaining his seat."

  14. The parallels with the United Kingdom legislation are not hard to see. But, in one material respect, the legislation is different: section 45(1) does not refer to the election court finding the person "guilty" of bribery, but simply to the election being avoided by reason of bribery. In short, unlike the United Kingdom legislation, it does not use the language of the criminal law to describe the determination of the election court. In Mauritius there is, accordingly, a contrast between the language used to describe the finding of the election court trying an election petition and the language used to describe the finding of the criminal court trying someone for an election offence. The reasoning which influenced the English Court of Appeal in reaching its conclusion that proof beyond reasonable doubt should also apply in election petitions is accordingly not applicable for Mauritius.

  15. Perhaps the strongest argument in favour of the appellant's contention, that proof beyond reasonable doubt is nevertheless the appropriate standard, is that the court should be slow to set aside the result of a democratic election and should do so only where the bribery etc is established to this high standard. But a powerful argument the other way can also be advanced: if the court is indeed satisfied on the evidence that the result of the election was tainted by bribery etc, then it should intervene and set aside the election in order to ensure that a fresh election can be held in which the result truly reflects the wishes of the electors.

  16. An election petition is unquestionably a civil proceeding. Their Lordships are persuaded that, when the legislature used the language which it did in section 45(1), by contrast with the language used in section 64(1), it was deliberately choosing to approach the matter, not as one where the criminal standard should apply, but as one in which the court should adopt the civil standard of proof. In other words, it was adopting the second of the possible lines of approach identified in the previous paragraph.

  17. If that is right and the legislature was adopting the civil, as opposed to the criminal, standard of proof, then, even though what is in issue is whether or not the election should be avoided on the ground of bribery, there is no question of the court applying anything other than the standard of proof on the balance of probabilities. In particular, there is no question of the court applying any kind of intermediate standard. The position was explained by Lord Hoffmann in Secretary of State for the Home Department v Rehman [2003] 1 AC 153, para 55:

    The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.

    In In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2008] 3 WLR 1, para 13, Lord Hoffmann returned to the point and declared, at para 13:

    I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.

    Because of the confusion to which the point was continuing to give rise despite what had been said in Rehman, Lord Hoffmann went on to stress, at para 15:

    There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.

  18. Similarly, in In re D [2008] UKHL 33, [2008] 1 WLR 1499, in which judgment was given on the same day as judgment in In re B, Lord Brown of Eaton-under-Heywood said this, at paras 43-44:

    43.

    Obviously, everything going to the likelihood or otherwise of an allegation being true – of an offence having been committed or other reprehensible conduct – is relevant to the Court's consideration as to whether, having regard to all the evidence, it has been established as more likely than not. Generally speaking, as Lord Nicholls was pointing out, people tend not to commit serious offences – not least because of the consequences likely to follow if they do – and ordinarily people are more likely to have been negligent than fraudulent, more likely to have hurt someone unintentionally than deliberately, more likely to have provoked a stepdaughter into complaint by having lost their temper and slapped her than by having raped her. Similarly, as Lord Hoffmann pointed out in Rehman, one is more likely to see an Alsatian than a lioness in Regent's Park (the proximity of the zoo notwithstanding). Similarly too, someone with a good character is less likely to behave badly than someone with a bad character. Someone who values their 'reputation' will be less likely to imperil it than someone known to be disreputable. These are simple illustrations of an obvious point and no purpose would be served by multiplying them.

    44.

    It is surely equally obvious that the more inherently unlikely it is that something has happened, that an allegation is true, the more persuasive (cogent is the word often used) the tribunal will need to find the evidence pointing that way before concluding it to be more likely than not.

  19. It follows that the issue for the election court is whether the petitioner had established, on the balance of probabilities, that the election was affected by bribery in the manner specified in the petition. In practice, as explained in the passages just quoted, as a matter of common sense rather than law, the court is unlikely to be satisfied on the balance of probabilities that there has been bribery, unless there is cogent evidence to that effect. But the matter is simply one for the court assessing the position in the light of all the available evidence.

  20. In the present case the Supreme Court explained that it would reach its factual conclusions on the balance of probabilities. It was, in their Lordships' respectful view, correct to do so. The court went on, however, to add, as a rider, that allegations of fraud and dishonesty always had to be approached with care and caution by the application of a more stringent degree of probability. As the Board has just explained, that approach is incorrect: the court must simply be satisfied on the balance of probability. But the error of approach is an error in the appellant's favour and so he cannot pray it in aid as a reason for the Board to interfere with the Supreme Court's findings of fact.

  21. Before considering those findings further, the Board must address the important issue raised by section 45(1)(c) which was introduced into the 1958 Act by section 7 of the Representation of the People (Amendment No 2) Act 1976. At the outset of the hearing of the appeal, counsel for the appellant explained that the appellant did not wish to advance any argument based on section 45(1)(c). He wished to have his appeal considered on its merits and wanted the Board to allow it on the basis that Mr Ringadoo had not established any corrupt practice on his part. But, as the hearing progressed, it became clear to the Board that the appellant's request that the Board should not consider any defence based on section 45(1)(c) tested on a misapprehension of the nature of that provision. It is not a defence. Rather, as the language makes clear, it prohibits the bringing of a petition or the avoiding of an election on the grounds set out in section 45(1)(c): "Notwithstanding this Act or any other enactment, an election petition shall not be presented against a member and the return or election of a member shall not be avoided" on the specified grounds. So the provision prevents the bringing of a petition and deprives the court of any jurisdiction to avoid an election on these grounds. It follows that the court must consider the applicability of section 45(1)(c) in this case, irrespective of the attitude initially adopted by counsel for the appellant. It is fair to say, however, that by the time he came to reply, counsel for the appellant had really accepted this and, in effect, adopted the position that the provision did apply and excluded any finding against the appellant in the circumstances alleged in the petition.

  22. Unfortunately, the drafting of section 45(1)(c) of the 1958 Act is far from satisfactory and not all aspects of the provision appear to be coherent. Much the same can be said of section 51(2)(c), which was introduced at the same time by section 8(b) of the Representation of the People (Amendment No 2) Act 1976. Section 51 deals with the authorised amount of election expenditure and section 51(2)(c), as amended, provides that in determining the total expenditure incurred in relation to the candidature of any person at any election, regard shall not be had to

    (c)

    (i)

    any act done, services rendered or expenditure incurred by a public officer, a local government officer or an officer of a statutory authority or corporation either in the discharge or purported discharge of the officer's functions while that person was the holder of an office; or

    (ii)

    any act done, services used or expenditure incurred by that person while he was the holder of an office.

    Comparison of section 51(2)(c)(i) and section 45(1)(c)(i) shows that the concluding words are different: the former ends "while that person was the holder of an office" whereas section 45(1)(c)(i) ends "or while the member was the holder of an office".

  23. In section 51(2) the concluding words in sub-para (i) appear to be intended to make it clear that the exemption applies only where the act is done etc by someone who not only is a public officer but who held the public office at the relevant time. The additional words can be criticised as being unnecessary, perhaps, but their purpose can be understood. The real difficulty is in seeing what sub-para (ii) adds.

  24. In section 45(1) there is, at first sight, a readily identifiable distinction between sub-para (i), dealing with acts etc of a public officer, and sub-para (ii), dealing with acts etc of the member while he was the holder of an office. But that distinction is blurred by the concluding words of sub-para (i). Had the model in section 51(2) been followed, one might have expected to find words designed to make it clear that the exclusion applied only where the person doing the act was a public officer at the time when he did it. Instead, the concluding words seem designed to include, within the ambit of sub-para (i), cases where the member was the holder of the office who did the act etc – the very situation covered by sub-para (ii).

  25. If the Board does not dwell further on these problems, it is because they are secondary to the more basic problem of understanding the scope of section 45(1)(c). What is it intended to do? That is really the point which has to be decided before the Board can determine if the provision applies in this case.

  26. The Supreme Court's interpretation of section 45(1)(c)(i) and (ii) is contained in the following passage:

    After considering the submissions of all counsel and in the light of the Parliamentary debates as can be gleaned from Hansard and more specially section 45(1)(c)(ii), we are of the view that the word 'or' was either out of place or otiose, if not mere surplusage. It is the public expenses which were aimed at and namely those expenses incurred by certain officers, public or para-statal, during election time when the member was in office. The intention of the legislator was made clear from the debates as shown in Hansard and it was translated in both subsections (i) and (ii) of section 45(1)(c). It is also our considered view that the public expenses must be made bona fide and in the ordinary course of the administration of the public affairs notwithstanding that an election was imminent. We are also of the view that that section was not enacted to institutionalise corrupt practices for a class of candidates who held certain offices as defined under section 2 of the Representation of the People Act at the time of an election. Acts done in breach of sections 64 and 65 of the Representation of the People Act by 'a public officer, a local government officer or an officer of a statutory authority or corporation' or 'by the member' to serve the purpose of a candidate who held an office as defined or by that candidate personally are not saved by section 45(1)(c)(i) and (ii) of the Representation of the People Act, if proved to have been done in utter bad faith and with a corrupt motive.

  27. As the Supreme Court indicates, the origin of section 45(1)(c) lies in India – more particularly, in the India of Mrs Indira Gandhi's state of emergency in the summer of 1975. The crisis was precipitated by a decision of the High Court of Allahabad in June. The court found that Mrs Gandhi, who was Prime Minister, had been guilty of corrupt election practices during the general election of 1971, and disqualified her from holding elective office for six years. The first ground which the court found established was that Mrs Gandhi had used an official in the Prime Minister's secretariat to do election work for her for some days after she had indicated her intention to contest the election. The second ground was that she had obtained the help of certain public officials in organising the construction of rostrums from which she had addressed election rallies and in arranging free supplies of loudspeakers and power. The day after the court's decision, The Times commented in a leading article that:

    Such issues are natural to any democracy when the country's political leader is fighting an election in her own constituency. How far may a government servant, albeit privately appointed, be involved in any way in the electoral process? What actions may the police take in determining the security of a public meeting addressed by the Prime Minister if the meeting happens to be her own electoral meeting?

  28. Mrs Gandhi appealed and did not resign as Prime Minister. The appeal was set for hearing in the second week of August. In the meantime a state of emergency was declared and the government introduced legislation into parliament with the intention of altering the law under which Mrs Gandhi had been convicted. The law was to be passed before her appeal hearing and was to be retroactive. The legislation was indeed passed on 6 August 1975, in time for the hearing, and became the Election Laws (Amendment) Act 1975. A challenge to its constitutionality ultimately failed. Section 40 of the 1975 Act amended section 123 of the Indian Representation of the People Act 1951, dealing with bribery. Read short, section 123(7) defines "bribery" as including the obtaining or procuring, or abetting or attempting to obtain or procure, by a candidate or his agent, of any assistance for the furtherance of the prospects of that candidate's election from any person in the service of the Government and belonging to any of a number of specified classes. The proviso added by the 1975 amendment is in these terms:

    Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.

  29. The broad effect of the proviso is to exclude from the definition of bribery any act or thing done by any person in the service of the government for, to, or in relation to, any candidate or his agent. The words in brackets "whether by reason of the office held by the candidate or for any other reason" seem designed to cover the case – which would obviously have been of potential relevance in connexion with Mrs Gandhi's situation – where a candidate, say, held ministerial office and was, for that reason, in a position to request or direct an official to do something for, or in relation to, the candidate. In all such cases what is done is not to be deemed to be assistance for the furtherance of the prospects of the candidate's election and so does not count as bribery in terms of section 123(7).

  30. Despite its origins in the dark days of 1975, the proviso remains on the Indian statute book today. This is presumably because it is a response to the kind of genuine problem that the leader writer of The Times recognised. Indeed, with the heightened security surrounding ministers in many countries in recent years, the issue of the use of government security officers during an election has, if anything, become even more important. In other respects the problems are just particular examples of the consequences of the more general phenomenon of the politicisation of the civil service which is found in some countries.

  31. The Board was referred to the Hansard report of the debate in the Parliament of Mauritius in 1976 which led to the enactment of section 7 of the Representation of the People (Amendment No 2) Act 1976, introducing section 45(1)(c) of the 1958 Act. The lively discussion shows that the then Opposition members regarded the new provision and its Indian origins with considerable suspicion. But the debate also confirms that what the Government professed to have in mind was the kind of situation where, say, a government minister used official transport during an election campaign but did so for the purpose of getting him to some place where he was to carry out some public duty in his continuing capacity as a minister. Similarly, the Government was thinking of the use of government security officers to protect ministers during the election campaign. The Prime Minister referred to the fact that, after the previous general election, the Government had been faced with many electoral petitions, which, according to him, had proved to be without merit. The Supreme Court judges had these passages from Hansard in mind when they were interpreting section 45(1)(c). The Board also considers that they help to identify the mischief which the legislation was designed to remedy.

  32. One possible view of the scheme of the legislation was discussed during the hearing before the Board. It might be argued that the intention behind section 45(1)(c) was to prevent the raising of election petitions on the ground of a kind of corrupt practice, involving acts of public officials and members and described in sub-paras (i) and (ii), while still leaving it open to the Director of Public Prosecutions, if so minded, to prosecute the member concerned for the relevant election offence. If convicted, the member would lose his seat by virtue of section 69(b). Their Lordships reject that approach. In the first place, it would be startling for Parliament to pass legislation which would have the effect of giving at least provisional legitimacy to an election which had been obtained by corrupt means. If someone who is involved in such a malpractice will lose his seat if he is convicted of the offence, it seems strange that proceedings in the election court to unseat him should be blocked. Moreover, if that had been the intention, their Lordships would have expected to find that it had been spelled out by the government in the debate so that Parliament was made aware that it was being asked to pass such an extreme measure. But, on the contrary, the passages from Hansard show that ministers denied any such intention and were at pains to stress that the provision was aimed at essentially innocent conduct which might nevertheless give an opening for unmeritorious challenges by way of election petition.

  33. The Supreme Court judges regarded section 45(1)(c) as being aimed at public expenses. While that may be one element, the Board would prefer to see the provision as being aimed at preventing elections from being challenged on the basis of some incidental electoral advantage deriving from the legitimate actions of public officials or of members acting in some official capacity.

  34. Their Lordships have already noticed that the provision does not take the form of a defence but constitutes a bar to the raising of an electoral petition and to the finding that an election is void: "Notwithstanding this Act or any other enactment, an election petition shall not be presented against a member and the return or election of a member shall not be avoided" on the grounds set out in sub-paras (i) and (ii). The effect is that conduct which falls within those sub-paragraphs is not to be made the subject of an election petition. In other words, even though a petition can be presented, on the ground, say, of bribery (section 64(1)) or undue influence (section 65), conduct which is fairly and fully described by the terms of the sub-paragraphs is not to be considered as falling within the terms of any of the election offences in the Act. Whether or not the provision is thought of as creating an exception, the Board considers that it should be construed as applying only where the conduct in question falls squarely within its terms. In other words, the sub-paragraphs apply to conduct which has no other significant characteristics beyond those set out in the sub-paragraphs. It follows that conduct which can be described, in part, in terms of the sub-paragraphs but which has some additional feature, which means that it constitutes, say, bribery in terms of section 64(1), is not caught by section 45(1)(c). So, if, for example, a public official spent public money to buy food for a minister's constituents in order to bribe them to vote for him, that would not be covered by the exception, even if the official's ordinary job included spending public money on buying food for distribution to alleviate hunger. The corrupt purpose of trying to get the recipients to vote for the minister would take the conduct, considered as a whole, beyond the confines of the conduct described in sub-para (i) of section 45(1)(c). There would accordingly be nothing to prevent a rival candidate from raising an election petition, or the court from avoiding an election, on the basis of that conduct.

  35. It follows that section 45(1)(c) would only have deprived the Supreme Court of jurisdiction to avoid Mr Jugnauth's election if the conduct which the court had found proved could fully and fairly be described in terms of either sub-para (i) or (ii).

  36. In turning to consider that point, the Board does so on the basis of the findings made by the Supreme Court. Having decided that the judges made those findings on the basis of a standard of proof which was, if anything, too generous to Mr Jugnauth, their Lordships see no other ground on which they could be disturbed by the Board. The Board is mindful that the Supreme Court judges had the advantage of seeing and hearing a number of witnesses and made good use of that advantage while carefully reminding themselves of the particular risk that witnesses in election petitions may have political and other axes to grind. The Board would add this. Their Lordships 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. For all these reasons the Board must consider the position in the light of the Supreme Court's findings.

  37. As those findings show, the problem of acquiring additional land for the Moslem section of the cemetery serving the community in the villages of St Pierre, Moka, Circonstance, L'Avenir and Dagotiθre had been recognised since at least 2002. The villagers wanted to solve it by buying a plot of land belonging to a sugar company, Mon Desert Alma Ltd. The problem was that they could not afford the purchase price. As a result, an approach had been made to the Government, asking it to acquire the necessary land. On 27 January 2004 the Ministry of Local Government replied that "the project would be implemented by the religious association." In November 2004 Mon Desert Alma Ltd sold the necessary land to the representatives of Circonstance Muslim Cemetery Waqf-Ul-Lillah for the sum of RS 2m, more than half of which was to be paid immediately and the rest not later than 24 February 2005. Unfortunately, the parties to this transaction soon found themselves involved in a legal action which meant that it could not be completed while the action was running.

  38. On 2 February 2005 one of the MSM/MMM alliance Members of Parliament wrote to the Prime Minister about the problem of the lack of burial space which had been raised by the Moslem Associations of constituency no 8. The letter ended by asking the Prime Minister to "kindly consider intervening personally to expedite matters given that the project has been lingering on for so long and that there are ethnic susceptibilities at stake." Nothing appears to have happened at that stage.

  39. On 24 June 2005, however, during the general election campaign, the Cabinet took note "that the Ministry of Housing and Lands proposes to acquire a plot of land of 2 arpents adjoining Circonstance Cemetery, St Pierre from Mon Desert Alma with a view to providing additional space for the Muslim Section of the cemetery." That same day the Permanent Secretary of the Ministry of Housing wrote to his counterpart in the Ministry of Local Government and Solid Waste Management: "I am to inform you that it is the Government's intention to proceed with the acquisition of two arpents of land situated at Circonstance, St Pierre, for the purpose of the enlargement of the existing cemetery. However, action for the purchase of the land will be initiated when the court case will be disposed of." The following day, the Mouvement Islamique du Centre launched a circular inviting people to attend a meeting to be held at St Pierre on 29 June to hear the good news to be announced by the members of the National Assembly, namely getting 2 arpents of land for the cemetery without paying Rs 2m.

  40. At the trial there was a dispute as to what Mr Jugnauth said at the meeting on 29 June, but the court resolved it by holding that they had no hesitation in believing that he

    did, at the meeting of June 29, 2005, organised by the Mouvement Islamique du Centre, say that the government had given a plot of land worth RS 2m free of charge to the Muslim community in Constituency no 8 for the enlargement of the cemetery and that it was now for the Muslim[s] to vote for his party.

    Having examined various other legal and factual matters, the court went on to say:

    It is not denied that the Cabinet had only taken note as regards the decision of the Ministry of Housing and Lands. The announcement made by the respondent at the meeting of June 29, 2005 organised by the Mouvement Islamique du Centre did not reflect what the Cabinet had taken note of. The Ministry of Housing and Lands had not yet acquired the land but showed only an intention to do so. The statement made by the respondent at the meeting of June 29, 2005, attended mainly by members of the Muslim faith, was therefore misleading. Irrespective of whether the invitation made by the Mouvement Islamique du Centre was to brag about all the achievements made by [the] association with the help of the respondent and the other members of the National Assembly of the constituency, the respondent had made a speech which was understood, as we have it from witness Anwar Hossen Rozbully, to invite the Muslim voters to vote for him and his party as the government had given free of charge a plot of land worth Rs 2m for the extension of the Muslim cemetery and upon which the press had commented upon. As highlighted above, 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. There is obviously a marked distinction between blowing one's own trumpet and calling upon the voters to continue voting for that party and bribery in the sense of gratifying or endeavouring to procure valuable consideration to the voters or, putting bluntly, buying the votes or inducing the electors to vote for him or his party which is no doubt reprehensible and illegal. The respondent had adduced no cogent evidence to rebut that allegation.

  41. The court returned to the matter a little further on and began the exposition of their conclusions by saying that

    it has been established beyond a balance of probabilities that the announcement by the respondent was a misrepresentation of the decision of the Cabinet at a meeting composed of Muslim voters at the time when there was an election in less than a week's time for a purpose which could not be an innocent one but which, we can reasonably infer, was made corruptly to influence the Muslim community of Constituency no 8 to vote for him and his party.

    The court went through the background once more and continued:

    The statement of the respondent, some four days before the poll, was no doubt misleading. Such misrepresentation could not have been made inadvertently but which we consider was done with a corrupt motive as we can safely and reasonably infer having regard to all the prevailing circumstances, more specially to pre-empt the landslide allegiance of the Muslim community to the opposition party and, consequently, to obtain an unfair advantage over his opponents. It was member of his party, the then Minister of Housing and Lands, who introduced the paper for Cabinet to take note. We have not been told why there was such a pressing need a few days before the General Elections. The misleading statement of the respondent constitutes nothing more than an act of corrupt practice of bribery to mislead and to influence the Muslim voters of constituency no 8, which constitute 10% of the voters, to vote for him and his party. It was an attempt to gratify the Muslim voters by inducing them to believe that the Government had donated land worth Rs 2m for the extension of the Muslim cemetery, when that was not the case. We find the complaint under paragraph 16(a) as particularised to have been proved beyond a balance of probabilities and the respondent's act is not saved by section 45(1)(c)(i) and (ii) of the Representation of the People Act and consequently we rule that the election of the respondent to be a nullity and void on account of corrupt practice of bribery.

  42. In their Lordships' view, the Supreme Court judges' conclusion was one which it was open to them to reach on the facts as found by them. They were entitled to conclude, as they did, that Mr Jugnauth had deliberately misrepresented the decision of the Cabinet to the meeting and that he could only have done so with the intention of inducing the Muslim voters in the audience to vote for his party, in return for the Government donating land worth Rs 2m for the extension of the cemetery. As so described, the appellant's conduct at this public meeting can by no stretch of the imagination be said to fall fully and fairly within the terms of section 45(1)(c). The Supreme Court's conclusion on this complaint must therefore stand.

  43. The Supreme Court treated the three other complaints together. Each of them concerned recruitment for Civil Service jobs within the Ministry of Health of which the appellant was the responsible minister at the time. The recruitment exercises had begun before the General Election was announced and they continued during the General Election campaign. The allegation for the respondent was that Mr Jugnauth and his agents had, in effect, used these recruitment exercises as a means of bribing people to vote for his party in exchange for jobs. The defence was that the recruitment exercises had been conducted in a normal way. They continued during the election campaign, but that was just because the normal administration of government had to continue at such times. Mr Jugnauth maintained that, in any event, he had not been personally involved in the exercises.

  44. The Supreme Court judges heard and analysed a considerable body of evidence, both written and oral, relating to these complaints. In particular, they accepted the evidence of Mr Nikhil Askoolum, who was normally a Labour Party supporter and who had applied for a job as a Health Care Assistant in November 2004. He spoke to various occasions over a period of months in 2005 when things had been said to him by agents of the appellant's political party to the effect that he would have to attend meetings and help the party if he was to get the job for which he had applied. The appellant himself had made such a statement ("You must vote in order to obtain a job; just sitting won't get a job" (translation)) at a meeting at the Mohit Hall. A week before the election, an employee of the Ministry, who was also an agent for the MSM/MMM alliance, had congratulated him on having been selected for the job. He subsequently received a letter of appointment dated 30 June and telling him to attend for duty on 5 July. When he did so, he was told that the appointments had been cancelled.

  45. The judges expressed their conclusions on the evidence in this way:

    After assessing the witnesses in relation to the recruitment of General Workers and the Hospital Attendants, we find it not proved that:

    (a)

    it is the respondent who was in any way involved in the request for the list of names from the Ministry of Employment;

    (b)

    the purpose of the request of the list was apparent rather than real;

    (c)

    the purpose of the recruitment was for the specific purpose of creating an illusory expectation in the electorate for fake employment in the civil service.

    On the other hand, we are satisfied from the evidence that it has been established beyond a balance of probability that:

    (a)

    the recruitment exercises formed part of the normal functions of government

    (b)

    they were geared in such a way and held at such a time that the respondent could derive political capital out of them;

    (c)

    interviews were conducted so close to the elections with the knowledge and approval of the respondent and in such a manner as to create the impression that they were being offered as exchange for votes;

    (d)

    the respondent as the Minister of Health could not have been, and was not altogether, unconcerned with the various stages involved in the exercises, contrary to what he pleaded as was shown above. Indeed, he was monitoring each and every step of the recruitment and letters of appointment were issued some 3 days before the polls;

    (e)

    one of the purposes, even if not the sole purpose, of the recruitment exercises was to attract voters to vote in return for the jobs in the civil service.

    With respect to the third case which relates to the recruitment of Health Care Assistants, we find that the undisputable evidence reveals that:

    (a)

    the Ministry had to recruit 388 of them;

    (b)

    the posts, advertised in October/November 2004, fetched some nine to ten thousand applicants on account of which the Ministry took some time to complete the interviews which was completed on April 15, 2005;

    (c)

    the list of successful candidates was drawn, it had to be sent, as per procedures to the PSC for approval;

    (d)

    the Ministry of Health and Quality of Life finalised the recruitment of the 388 candidates three days before the polling date and this with the consent and knowledge of the respondent;

    (e)

    the dire urgency of completing the recruitment so close to poll day [of] so many persons for run-of-the-mill jobs, the vacancies of which had been pending for so long, has not been explained except by way of electoral strategy;

    (f)

    the writ of election had already been issued, when the list of selected candidates was sent to the PSC between May 12 and 23, 2005;

    (g)

    the list contained 101 persons from constituency no 8 where the respondent was standing as one of the candidates;

    (h)

    one of the objectives of his Ministry, account taken of the timing of the interviews, the number of interviewees and other circumstances was to procure employment to those voters in order to induce them and other electors to vote for the respondent.

    This leaves us with the consideration of the involvement of the Minister and the involvement of his agents in culpable acts of bribery. On this issue, the facts and circumstances show that the respondent exposed himself to the risk and temptation of electoral abuse by the acts and doings of his Ministry and that he did fall into that abuse by his own acts and doings and the acts and doings of his agents; more particularly, by what he stated at Mohit Hall which was not different from what Sunil Beejadhur and Doorgachurn had stated to witness Askoolum.

  46. In the last substantial excerpt from the judgment of the Supreme Court which the Board has to set out, the judges summarised their position in these terms:

    We need to add, we think, that little could be laid at the door of the respondent were it apparent that what had happened between the date of Dr Chady's resignation and poll day was a mere acceleration of government measures to ensure timely completion and finalisation of projects with a view to increasing government chances for a re-election based on party performance or government 'bilan', as Mauritian political jargon goes. But that is not what happened. In the light of the test we have alluded to earlier, the fact reveals that the respondent and his entourage began to make an abuse of the hyperactivity generated by the constitutional time-pressure resulting by the resignation and that state of affairs became a temptation into which both the respondent and his agents slipped to attract votes in the constituency in question by seizing the golden opportunity of the recruitment exercise of the three classes of workers in his Ministry. Under the cloak of normal public administration which he was closely monitoring, he fell foul of the electoral law of bribery in the manner as testified to by witness Askoolum. The respondent was reported by witness Askoolum to have also stated that the respondent was only doing what had been done in the past. Be that as it may, the fact remains that this time the facts were more apparent and open and 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 exchanged for jobs in the civil service It is in this that we find that the petition has been proved beyond a balance of probabilities and the acts of the respondent are not saved by section 45(1)(c)(i) and (ii) of the Representation of the People Act.

    For the reasons given above, we find that all the three latter complaints stand proved. We, accordingly, find that the petition should also succeed on the last three complaints enumerated under paragraph 16(b), (c) and (d) of the petition. In the circumstances we find that the election of the respondent should be declared null and void for having been obtained in breach of sections 45(1)(a)(ii) and 64(1) of the Representation of the People Act.

  47. Again, the Board is satisfied that, on the facts that they found established, the judges of the Supreme Court were fully entitled to draw the inferences which they did. Of course, if all that had happened had been that the Ministry of Health and its officials had carried out the recruitment exercises in the normal way and this had resulted in appointments which made those appointed more likely to vote for Mr Jugnauth, then those actions would have fallen fully and fairly within the terms of section 45(1)(c)(i) and (ii). Rightly, an election petition based simply on the actions of the officials and the Minister in conducting those recruitment exercises would have been excluded. But, here, the court found that, so far as concerned the General Workers and Hospital Servants, "one of the purposes, even if not the sole purpose, of the recruitment exercises was to attract voters to vote in return for the jobs in the civil service", while with the Health Care Assistants, "one of the objectives of [the appellant's] Ministry, account taken of the timing of the interviews, the number of interviewees and other circumstances, was to procure employment to those voters in order to induce them and other electors to vote for the respondent." Any recruitment exercise which is conducted with these corrupt aims goes well beyond the scope of an act in the discharge or purported discharge of the functions of the Ministry's civil servants and so falls outside the protection afforded by section 45(1)(c).

  48. For these reasons the Board is satisfied that, having made a careful analysis and assessment of the evidence, the Supreme Court was fully entitled to reach the conclusions which it did in relation to these three complaints and - on the basis that, with the appellant's involvement, promises of employment had been made to electors on the understanding that, in return, they would vote for him - to find the grounds of complaint established.

  49. The Board will accordingly dismiss the appeal. In doing so, their Lordships would respectfully endorse the recommendation by the Supreme Court that the Electoral Supervisory Commission should draw up a Code of Conduct for ministers, civil servants and others for the period after an election has been declared. As the Supreme Court points out, in any such exercise the Commission would be able to draw on the experience of other Commonwealth countries where such guidance has been prepared and published.

  50. The parties should lodge written submissions on costs within 21 days.


Cases

R v Rowe [1992] 1 WLR 1059

Secretary of State for the Home Department v Rehman [2003] 1 AC 153

In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2008] 3 WLR 1

In re D [2008] UKHL 33, [2008] 1 WLR 1499

Legislations

Representation of the People Act 1958: s.2, s.41, s.45, s.51, s.59, s.64, s.66, s.69

Representation of the People Act 1983 [UK]: s.113, s.159, s.160, s.168

Representation of the People (Amendment No 2) Act 1976: s.7, s.8

Election Laws (Amendment) Act 1975 [India]: s.40

Representation of the People Act 1951 [India]: s.123


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