Any person having read the judgment of the two judges of the Supreme Court is overwhelmed by the various issues raised. A profound rethinking of our archaic electoral laws should now be on the agenda.

One of the issues to be addressed on the electoral law is with regard to whether the notion of a civil action (that may be started by a citizen) as opposed to a criminal prosecution (that is usually initiated by the authorities) should be kept separate. Our electoral law indeed separates the two concepts of civil and criminal. The rationale in our law for this division is that the standard of proof in civil and criminal cases differs.

The Supreme Court has found that all the four grounds complained of by Mr. Raj Ringadoo that the ?election of the respondent (Jugnauth) to be a nullity and void on account of corrupt practice of bribery? have been established. Is there now any need for a separate trial before a separate jurisdiction for a criminal case? The answer is yes! It may seem that the law is an ass! Yet this is the present state of our electoral law in matters of bribery.

If that is so then should Icac not start an investigation? Is it necessary for a complaint to be lodged by Mr. Ringadoo and his witnesses? Alternatively can Icac not start the investigation on its own? What of the appliance of Part 2 of the Prevention and Corruption Act entitled ?Corruption Offences??

It seems that accused Jugnauth has to face a criminal trial in the least possible delay so that the objection of abuse of process is not raised to prevent the criminal process from following its normal course. The accused must face trial as soon as reasonable and by an independent court.

The specificity of our electoral law that separates the civil and criminal aspect is referred to by the judges on page 27 of the judgment: ?In all those jurisdictions, (mentioned earlier in the judgment) the election petition rests on the petitioner establishing that the successful candidate was guilty of the corrupt practice complained of whereas in our section 45 of the Representation of the People Act?..there was no mention of the successful candidate being found guilty of the corrupt practice complained of. Section 45 of the Representation of the People Act simply makes mention of ?complaining of an undue election on the ground that the election was avoided by reason of bribery, treating, undue influence, illegal practice, irregularity, or any reason?. The notion of a charge or a finding of guilt is foreign to section 45 of the Representation of the People Act and the Supreme Court does not report to any other authority of its findings for further action to be taken.?

It is now obvious why Ashock Jugnauth is confident he will still stand as candidate again, whatever finding the Privy Council may come to. The case he has faced until now is but a civil matter. Section 45 of the Representation of the People Act prohibits the court from finding him guilty. The grounds of complaint are not charges.

On page 30 of the judgment it is stated: ?Indeed, our Representation of the People Act provides for civil and criminal proceedings which are each independent and autonomous of the other. The conditions for which the result of an election can be challenged are provided for by section 45 of the Representation of the People Act. It is the presentation of an electoral petition to the Judge in Chambers within a specified delay and such action is eminently a civil matter for which the standard of proof is normally one on the balance of probabilities. Evidence which would be sufficient to justify the finding by the Court hearing an electoral petition that the candidate had committed corrupt practices, for example, bribery, would not necessarily be sufficient to support a conviction in criminal proceedings.

In this regard, account should be taken of the fact that by virtue of section 7(2) of the Criminal Procedure Act, the findings on the hearing of an electoral petition that the candidate had committed acts of corrupt practices would be inadmissible in criminal proceedings brought against the candidate in respect of an alleged act of bribery and vice versa.? It is now clear that a criminal case ? if one there is has to start all over again!

One further question that may arise is whether one should wait for the final pronouncement of the Privy Council in the civil matter ?in one year?s time or so before the investigation starts. The answer is NO! There is absolutely no relationship between the appeal in the civil matter and the possible prosecution before a criminal jurisdiction that may or may not reach the Privy Council at the end.

Even though the standard of proof in a criminal matter is ?beyond reasonable doubt?, the two judges of the Supreme Court have already found that the four grounds of challenge have been proved ?beyond a balance of probability?. One may argue that there is still to go from that standard and the standard that is referred to as ?beyond reasonable doubt?. That precisely is the task of the Prosecution in a criminal case.

Ashock Jugnauth may well have to face criminal charges for bribery and corruption sooner or later. Only if the prosecution fails then he can be clear in his mind of being a candidate in that constituency or another constituency or else for seven years he must be out.

And ?what if the Bar Council finds ground to initiate disciplinary action against him if he is convicted of a criminal offence! Or can the Bar Council alternatively start proceedings after the civil case is disposed of by the Privy Council.

<B>Lawyer</B>