JUGNAUTH ASHOCK KUMAR v RINGADOO RAJ DIREVIUM NAGAYA

2007 PRV 58
2008 MR 354

JUGNAUTH ASHOCK KUMAR v RINGADOO RAJ DIREVIUM NAGAYA

2007 PRV 58
2008 MR 354

Privy Council Appeal No 58 of 2007

Ashock Kumar Jugnauth Appellant

v.

Raj Direvium Nagaya Ringadoo Respondent

and

(1) The Electoral Commissioner

(2) The Electoral Supervisory Commission
(3) The Returning Officer of Constituency No. 8
(4) Mr Surendra Dayal
(5) Mr Ramloll Parmessur Co-respondents

FROM

THE COURT OF APPEAL OF

MAURITIUS

-----------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 5th November 2008

-----------------

Present at the hearing:-

Lord Scott of Foscote

Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Lord Mance

----------------

[Delivered by Lord Rodger of Earlsferry]

[2008] UKPC 50
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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.
 3
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.
 4
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.
 5
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.
 6

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:
 7
“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
 8
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
 9
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
 10
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
 11
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
 12
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 Dagotière 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
 13
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
 14
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;
 15
(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
 16
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
 17
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.