Suren Dayal’s Election Petition

Qs & As

The Privy Council

‘One cannot anticipate the outcome of the case. Each case is decided on its own merits and depending on what the Law Lords make of the facts’

* ‘It is hard to understand why it takes years after an election to determine an election petition’

By LEX

In a small island where politicians, lawyers, judges and business community leaders rub shoulders formally and socially, where so many institutions are politicised and given the way some laws are interpreted, it is salutary, says Lex, that we still have the Privy Council as a supervisory court to set matters right and in their proper perspective whenever required, in addition to consolidating our jurisprudence.

* Is it possible to anticipate what the Law Lords of the Judicial Committee of the Privy Council (JCPC) may decide in the appeal lodged by Suren Dayal against the judgement of the Supreme Court, which dismissed his petition against the election of Pravind Jugnauth, Leela Devi Dookun-Luchoomun and Yogida Sawmynnaden? Are there trends that could indicate the direction in which the Law Lords would be likely to take?

No, one cannot anticipate the outcome of the case. Each case is decided on its own merits and depending on what the Law Lords make of the facts and how they will apply the law.

* The process of justice is supposed to be impartial, but Suren Dayal is challenging the election of, amongst others, the sitting Prime Minister of the current government. Could that be a consideration that may influence the decision of the Privy Council should it choose not to disturb the status quo at the level of the governance of the country?

Many people, including lawyers, believe that when a court of law is dealing with a sitting head of government or head of state, this might be something that judges would bear in mind. We are free to speculate, but we will never know if that’s indeed the case.

* But would you expect the Law Lords to go the way they did as in the MedPoint case?

Difficult to say. The turning point in the MedPoint case was the volte-face of the Independent Commission Against Corruption (ICAC), represented before the Privy Council by its director, Navin Beekarry, who filed a document to state that there was no case against Pravind Jugnauth. If the institution that filed a charge against an accused comes forward to state that its earlier decision was wrong and that the case should not go ahead, what can the court do? The issue in the MedPoint case was whether the sister of the Prime Minister had a personal interest in the matter, and this was what the Law Lords decided:

’40. The Board notes that the Independent Commission against Corruption, which initiated this prosecution, now accepts in its written case on this appeal that it is difficult to see how “an internal reallocation of payments source for the external contract” would be a decision in which Mrs Malhotra would have a personal interest.

’41. This is sufficient to dispose of this appeal. The prosecution has failed to establish that the defendant’s sister had a personal interest in the decision, an element of the actus reus of the offence contrary to section 13(2). However, it should also be noted that, by the same token, the defendant could not have had knowledge of the existence of facts giving rise to a personal interest in the decision in his sister, because there were none.

’42. For these reasons, the appeal will be dismissed.’

* The layman may sometimes wonder whether judges are or could be completely free of ‘predispositions, prejudices, and vulnerabilities that come from their own life experiences’ or other vulnerabilities. Both locally and at the level of the Privy Council?

To what extent does a judge’s personal views or opinions really shape the outcome of a case, and what should be done about it, that’s difficult to say. However, in a society where the media and general public are increasingly scrutinizing judicial decisions, judges and magistrates are expected to justify their decisions or risk facing public and even professional backlash.

* Besides the Crown dependencies and the United Kingdom Overseas Territories, Mauritius is one of the 12 Commonwealth countries which still use the JCPC as their highest court of appeal. Australia was one of the first in 1901 which established its own highest court for constitutional matters. India abolished appeals to the Privy Council in 1949 – two years after winning independence. Why did our political leadership decide to hang on to the Privy Council?

With the politicisation of so many institutions and given the way some laws are interpreted, it is salutary that we still have the Privy Council as the final court of appeal to set matters right and in their proper perspective whenever required. Many judgments of the Privy Council are living proof of this. For example, the Supreme Court held that the decision of the DPP is not reviewable, but the Privy Council held otherwise. Read More… Become a Subscriber

Mauritius Times ePaper Friday 25 November 2022