In the aftermath of the verdict of the Supreme Court in the case of Suren Dayal’s election petition and as his legal team is readying itself to go to the Privy Council for a second opinion, we approached former Supreme Court Judge Vinod Boolell about his reading of the judgment and his opinion on the matter. In a rare interview, Vinod Boolell sheds legal light on the whole issue.

The Supreme Court has rejected the electoral petition of Suren Dayal, who was challenging the election of the three candidates in constituency no. 8 on the grounds of bribery, treating and undue influence. Dayal’s legal team responded by asking for leave to appeal to the Privy Council. As a former Supreme Court (SC) judge, what is your reading of the verdict?

Before answering the question, I want to make one point clear. My observations or criticisms on the judgment are not directed against the judges personally. I do not consider it proper that judges should be attacked personally following a judgment that many will not agree with. It is perfectly permissible to criticise a judgment and even the approach a judge has taken. What is not proper is to cast imputations on a judge. As was held in a case in 1936 by the Privy Council, “judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court”.

 OK. Now that that has been established, what is your answer to the question?

To come back to the question, the court after an analysis of the legal definition of these terms and after considering the facts of the case, came to the conclusion that there was no single valid reason to invalidate the election.

 Let’s have your views on the separate points taken. Concerning bribery, Dayal’s lawyers pointed out the Basic Retirement Pension (BRP) promised increase from Rs6,210 to Rs13,500 and that the 2019-2020 budget provided for only a Rs500 increase. They also argued that the increase was announced five days before parliament was dissolved during a rally where pensioners were invited and were treated to Briani and drinks and which benefited from an extensive cover by the Mauritius Broadcasting Corporation (MBC). There was no evidence to prove that according to the SC.

The evidence showed that there were announcements of an increase in the BRP on 10 June 2019, on 1 October 2019, five days prior to the dissolution of parliament, on 5 October 2019 and on 15 October 2019. One peculiar feature of October 1, 2019 announcement was the organisation of a gathering of senior citizens. According to Mr. Dayal, the announcement at the event of an increase in BRP was made for the specific purpose of manipulating the minds of senior citizens. It was clearly an act of bribery, a political manoeuvre and a bargaining tactic to earn votes. The elected candidates argued that the increase in BRP formed part of the electoral campaign programme of L’Alliance Morisien.

 The SC accepted this argument as valid and declined to intervene, didn’t it?

Yes, the court concluded that “it has not been established on a balance of probabilities that the announcement of an increase in BRP constituted an act of bribery. It was an electoral promise contained in an electoral manifesto and made in the course of normal electoral campaigning. It was no more no less than a statement of intention of a future eventual government”.

“It is quite difficult to understand why the court did not deal with the alleged double standards shown by the MBC in broadcasting the press conference of Mr.Dulthumun 48 hours before polling day and yet declining to do so in the case of the press conference of Mr. Ramdhean.''

 On the accelerated payment of the PRB and a bonus to police officers and firemen, the evidence on behalf of Mr. Dayal was that on 23 October 2019, after the dissolution of the national assembly on 6 October 2019, the prime minister announced that the PRB Report would be implemented as from January 2020 itself.

Yes, but this was impossible as the PRB Report had not yet been published. Moreover, no provision had been made for such a measure in the Appropriation (2019-2020) Act 2019. This announcement targeted 80,000 public sector employees, including those of constituency No.8. This amounted to bargaining votes for money. A similar argument was made in regard to payment of a performance bonus to police officers, firemen and prison officers. The elected candidates’ stand was that all these payments formed part of their electoral manifesto.

On the issue of the payment of PRB and bonus, the court concluded that there was no evidence of any misleading or covert announcement by the elected candidates to a select category of voters in one particular constituency, of a donation in return for their votes in favour of an individual candidate. The court added: “Nor are we in a situation of voters being offered actual jobs in the civil service on the eve of a general election in return for their votes in favour of an individual candidate”. The court quoted from the case of Ringadoo against Ashok Jugnauth where it was held that “A candidate does not fall foul of our electoral law against bribery where he is selling so to speak government performance or electoral programme or party manifesto to attract votes. That is normal electoral campaigning”.

 The same argument goes for treating, doesn’t it?

Yes, on the facts, the court concluded that there was no corrupt motive as there was no intention to influence the participants to vote for the candidates.

 On November 5, 2019, the MBC allocated prime airtime to Somduth Dulthumun, a former president of a socio-cultural association. Dayal’s team claim that it undue influence either. The court in fact didn’t delve into this issue. Can the broadcast be considered as undue influence, according to you?

During that press conference aired by the MBC according, to Mr. Dayal, Mr. Dulthumun gave a manipulated and truncated version of a public meeting of the leader of L’Alliance Nationale, Dr Ramgoolam, at Plaine Verte, in order to influence the votes of the Hindu community. On that same 6 November 2019, the MBC covered the press conference of Mr Ramdhean, a president of a socio-cultural association, but did not broadcast it on the ground that this would be a breach of the guidelines issued by the Independent Broadcasting Authority. Yet, it aired the statement of Mr. Dulthumun.

 But the court did conclude that the neutrality and impartiality of the MBC is open to question, didn’t it?

Yes, but it did not pursue on that line and ignored that aspect of the case where the MBC applied double standards. Instead, the court went on another limb by holding that the real issue was whether Mr Dulthumun had committed an act of undue influence by spiritual injury and concluded that spiritual injury should be inflicted or threatened by a person exerting or perceived as exerting religious or moral authority and that Mr Dulthumun was not an authoritative religious or moral figure and that he could not have induced or compelled the Hindu electorate to vote or refrain from voting.

“It would be futile and pointless for a petitioner to invoke any bias from the mbc during a campaign as the court found that the director general acts independently though appointed by the prime minister.''

What about the alleged double standards of the MBC?

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

 According to the court, there was no proof that Somduth Dulthumun could have influ- enced the Hindu vote…

Then the question may be asked why Mr. Dulthumun was allowed broadcasting time 48 hours before polling day. Was it so urgent for him to go on air to criticise Dr. Navin Ramgoolam and ask him to apologise? This appears a bit far- fetched as a conclusion.

What are the implications of this judgment on future elections?

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

 What lessons can be learnt from this election petition?

One of the lessons learnt is that any politician of any party should think twice before filing an election petition. It would be a waste of time, money and resources to embark on such a risky venture given the trend of the judgments of the Supreme Court on election petitions recently. Secondly, it would be futile to invoke grounds like bribery and treating in the absence of direct evidence to establish clearly to the judges that such acts had an influence on voters.

 But shouldn’t the court rely on direct evidence of whether or not the alleged acts of bribery and treating had any influence on voters? Wasn’t that the whole point of the petition?

It is preposterous to expect direct evidence from a candidate and expect him to say that he intended to influence voters. In any case, including an election petition, direct evidence is rarely available and this is why the court may act on circumstantial evidence and draw reasonable inferences therefrom. On the issue of the double standards of the MBC, the court remained mute and brushed aside that issue and this is quite surprising. At any rate, it would be futile and pointless for a petitioner to invoke any bias from the MBC during a campaign as the court found that the director general acts independently though appointed by the prime minister. The next campaign promises to be quite interesting in the light of the judgment.