2020 SCJ 257
Record No. 119595 THE SUPREME COURT OF MAURITIUS
In the matter of:-
Sudarshan Bhadain, GCSK
1. The Electoral Supervisory Commission
2. The Electoral Commissioner
This is an application for leave to apply for a judicial review of “the decision and decision-making process” of the respondents “with regard to the conduct and results of the General Elections held on 7th November 2019” in order to have the said decision and decision-making process quashed, reversed or set aside on the grounds that they are tainted with irrationality, error of law, fettered discretion, unlawful delegation, procedural impropriety, unfair bias and are in breach of the legitimate expectations of the applicant.
The averments on which the applicant relies in support of his application for leave are quite lengthy and voluminous as can be gathered from his affidavit which contains 98 paragraphs and his statement of case which spans over no less than 26 pages.
We shall set out the essential averments. The applicant avers that –
1. he was a candidate in constituency No. 20 at the National Assembly Election 2019 held on 7th November 2019 (“the 2019 General Election”). After polling closed on 7th November 2019, the respondents published the official figures of the number of persons who had voted and gave a
breakdown thereof per constituency. Respondent No. 2 published on its website the number of valid ballot papers counted in each constituency. Days after the 2019 General Election, the respondents published a document on their website which they labelled ‘Confirmed Voter Turnout by constituency’ which reveals that there was a change in the total number of voters from the official figures that was earlier published. The respondents’ irrational decision and decision-making process to publicly announce and publish unreliable official figures of the actual number of voters after polling had closed on 7th November 2019 and to modify and replace the official figures already announced is outrageous. The applicant therefore questions the integrity of the 2019 General Election, the more so that, according to him, some candidates were elected by a few marginal votes.
2. The respondents have failed to properly and accurately compile and update the register of electors and this has resulted in the removal from, or non-inclusion in, the register of the names of thousands of voters who were of age and were entitled to vote. By so doing, the respondents have deprived those citizens of Mauritius of their fundamental right to vote at the 2019 General Election. It follows that the election is flawed and the results from the polls are irregular and irrational.
3. The intervention of respondent No. 2 on a private radio on 22nd November 2019 and his interpretation of section 41 of the Constitution shows that the respondents have misinterpreted the provisions of that section and constitutes an error of law which goes to the fundamental root of how the 2019 General Election was conducted and supervised.
4. Respondent No. 1 has made another error of law by failing to discharge its responsibility of outlining the respective duties and responsibilities of Government, Ministers and civil servants for the period after an election has been declared. In so doing, the respondents have failed to ensure that the 2019 General Election was conducted freely, fairly and democratically. Such errors of law by the respondents have the effect of weakening the very foundations of the Republic of Mauritius as a democratic State.
5. The respondents have failed to act in the face of breaches of section 64 of the Representation of the People Act (“the Act”) by the leader and other candidates of ‘L’Alliance Morisien’ who engaged in improper conduct, after the dissolution of the National Assembly and the issue of the writ of election on 6th October 2019, in order to procure votes from targeted segments of the general public against promises of money and other financial benefits. The respondents have fettered their discretion in the conduct and supervision of the 2019 General Election by failing to ensure that blatant acts or even attempts of electoral bribery would be seriously dealt with prior to votes being cast by electors to ensure that the election was conducted in a fair manner.
6. Respondent No. 1 has failed to fulfill its functions and responsibilities as required by section 41 of the Constitution. The respondents have turned a blind eye to acts of electoral bribery by the leader of ‘L’Alliance Morisien’ and his candidates. The respondents have thus failed to ensure fairness during the election period. The applicant has, in support of these averments, cited two examples which he has elaborated with a wealth of details in paragraphs 42 to 56, 90 and 91 of his affidavit.
7. The respondents’ decision to allow officials of the State Informatics Ltd, a private limited company owned by Government and whose chairman was an active member of the MSM political party and who on polling day had been campaigning in constituency No. 20 where the applicant was a candidate –
(a) to participate in the electoral process;
(b) to have access in computer rooms set up in the precincts of the polling and counting centres in breach of regulation 39(5) of the National Assembly Regulations 2014; and
(c) to computerize results of the 2019 General Election,
has materially affected the integrity of the said election. The respondents have adopted this new procedure contrary to other previous elections held in Mauritius without apprising the applicant and other candidates of this new process and no rules have been propounded to ensure and guarantee transparency and fairness. The figures have been computed in the absence of the counting and election agents of the candidates. Serious
doubts have been cast as to the veracity and accuracy of the final results announced.
8. A potential breach of regulations 37(1), 39(1) and/or 43(1) of the National Assembly Regulations 2014 may have been committed as four marked ballot papers were unlawfully removed from the safe keeping of the respondents and found at large by members of the public after the 2019 General Election, thereby tainting the integrity of the voting and counting process and proper conduct of the 2019 General Election which was stripped of its credibility.
9. The respondents have acted in a bias and unfair manner by accepting the nomination paper of the then Prime Minister whose election agent did not reside in the constituency where the then Prime Minister was a candidate whilst at the same time refusing the nomination paper of a candidate of the Reform Party, of which the applicant is the leader, on ground that his election agent did not reside in the same constituency as the candidate.
10. The respondents have, through their errors of law, fettered discretion, irrationality, procedural impropriety and unfair bias, failed to enforce electoral legislation and carry out their statutory functions impartially. The conduct of the 2019 General Election has been tainted and the results announced untenable.
11. The applicant’s legitimate expectations, as a candidate, to participate in a free and fair election have been breached.
Both respondents are resisting the application for leave. The grounds of objection of respondent No. 1 are as follows:-
(a) the applicant, who is the Leader of the Reform Party (a registered Political Party) and who represents Mr. Preetam Seewochurn (a candidate of the Reform Party in constituency No. 19 at the 2019 General Election) in re: P. Seewochurn v Hon. I. Collendavelloo and Ors [Serial No. 2036/2019 – Annex B], has failed to exhaust the remedies available to him by law, including the lodging of an election petition;
(b) the applicant has failed to lodge the application for judicial review promptly;
(c) the applicant has failed to put into cause all interested parties; and (d) the application does not disclose an arguable case.
The grounds of objection of respondent No. 2 are as follows:-
(a) the alternative remedy of election petition, under section 45 of the Act, ought to have been resorted to, in view of the averments in the applicant’s affidavit alleging that election of all candidates was procured as a result of bribery or illegality;
(b) the application for judicial review, in its width and its purport, is an abuse of the court’s process;
(c) the motion paper is vague and fails to identity the decisions which are being challenged;
(d) allowing the application to be heard will allow the applicant to circumvent the time limit and other requirements of section 45 of the Act;
(e) the order prayed for at paragraph (b) of the motion paper cannot be entertained as the Court cannot substitute itself for respondent No. 2 to exercise any of the powers and functions which have been vested in the Electoral Commissioner under the law and granting such an order would interfere with the lawful exercise of the regulatory powers of respondent No. 2; and
(f) there is no longer any live issue to this judicial review application.
Ground (d) and ground (c) of the respective grounds of objection of respondent No. 1 and respondent No. 2 were dropped at the hearing of the present application.
We have considered the extensive oral and written submissions of learned Senior Counsel for respondent No. 1, Counsel for respondent No. 2 and the applicant to whom we granted leave to appear in person and to conduct his case.
Sections 37(1)(a) and (5) and 83(5) of the Constitution provide as follows:-
“37. Determination of questions as to membership
(1) The Supreme Court shall have jurisdiction to hear and determine any question whether –
(a) any person has been validly elected as a member of
… … …
(5) Parliament may make provision with respect to –
(a) the circumstances and manner in which and the
imposition of conditions upon which any application
may be made to the Supreme Court for the
determination of any question under this section; and
(b) the powers, practice and procedure of the Supreme
Court in relation to any such application.”
“83. Original jurisdiction of Supreme Court in constitutional questions
… … …
(5) Nothing in this section shall confer jurisdiction on the Supreme Court to hear or determine any such question as is referred to in section 37… otherwise than upon an application made in accordance with that section…”
Section 45 of the Representation of the People Act, for its part, provides that an election petition may be presented in order to have the election of a member of the National Assembly avoided by reason of bribery, treating, undue influence, illegal practice, irregularity, or any reason. It also provides for strict procedures governing the presentation of an election petition.
In Mungtah v Jugnauth [2009 SCJ 393], the Supreme Court, referring to section 37(1) and section 37(5) of the Constitution, held as follows:-
“What the framers of our Constitution have done by enacting the above provisions, is to secure two competing interests, which are both of importance and of great public interest in a democratic state. Under section 37(1) the Constitution ensures right of access to the Supreme Court to unsuccessful candidates or electors of a constituency to challenge the
election of a member which, in their consideration, is not free and fair or which is tainted with illegality or corruption.
On the other hand, under section 37(5) the Constitution provides for the imposition of conditions which are likely to be necessary to act as checks and balances to control any abuse of process in the bringing of election petitions under section 37(1).”
In the light of the above, it is clear that the specific and proper manner in which the validity of the election of a member of the National Assembly may be challenged is by way of an election petition and that the Supreme Court derives its jurisdiction to hear such an election petition from the Constitution itself, the supreme law of this country.
In the present case, we agree with learned Counsel for the respondents that the applicant’s complaints and grievances, as per the numerous averments in his affidavit, an outline of which we have purposely set out above, clearly fall within the ambit of an election petition. As they have rightly pointed out, a perusal of the applicant’s averments shows that he is in effect challenging the integrity and results of the 2019 General Election and seeking leave to have those results quashed which, if granted, would in turn inevitably result in the invalidation of the election of the returned candidates in the 21 constituencies. To this end, the applicant, contrary to his contention, is relying on what are essentially election petition grounds, namely bribery, treating, illegal practice and irregularity, as borne out by his own averments as set out above.
We are of the view that the issues raised by the applicant in his affidavit must imperatively be determined by way of the specific procedure of an election petition in accordance with the mandatory provisions of section 45 of the Act which, as stated above, provides for the strict procedural requirements to be satisfied for the presentation of an election petition. An election petition is the specific statutory remedy through which an aggrieved petitioner may contest an electoral process in accordance with the Constitution and the Act. It was, accordingly, incumbent on the applicant to proceed by way of an election petition instead of a judicial review.
Tellingly, the applicant is also praying for an order to compel respondent No. 2, in view of a fresh general election, to register on the list of electors persons who were allegedly eligible to vote in the 2019 General Election but were unable to do so due to the absence of their names on the list. This begs the question as to the raison d’être of this
additional prayer if the applicant is not in fact seeking to have the results of the 2019 General Election quashed, which will then necessarily entail the holding of a fresh general election. And this buttresses the point that the applicant should therefore have proceeded by way of an election petition in order to be able to contest the validity of the 2019 General Election.
As correctly pointed out by learned Senior Counsel for respondent No. 1, the present application is indeed an election petition, the whole purpose of which is to have the results of the 2019 General Election quashed, presented under the guise of a judicial review application in an attempt to circumvent the mandatory provisions of the Act. We also agree with his submissions that this Court cannot pronounce itself on the validity or otherwise of the election of a member of the Assembly, which this Court is in effect being requested to do, except in the manner laid down by Parliament in the Act, in other words, by means of an election petition.
As held in Kodabaccus v. Electoral Commissioner & Ors [1992 MR 118]:-
“It follows therefore that an election may be questioned on the ground of any irregularity whatsoever. So that the only ground on which the plaintiff can complain is that, if a qualified person wishes to contest the validity of the election of a member of the Assembly, he is bound to do so by means of an election petition and that, if it is intended to show that a particular irregularity is common to more than one constituency, it is necessary to lodge as many petitions as there are constituencies involved.” [the emphasis is ours]
It is also apposite to cite the following extract from Bonnelame v Curé [1991 MR 224]: –
“Electoral petitions are not like any other civil action. They are matters of great public interest and not merely of private individual interests. Unlike the much longer periods prescribed for civil actions of various kinds involving merely private interests, the periods within which election petitions may be entered are relatively limited. That period is 21 days for the kind of petition that is now before us. There are, it seems to us, good reasons for this.
On the one hand, there is the need to ensure that unsuccessful candidates or electors in the constituency concerned should have a right to challenge the election of a person who would otherwise be their representative either in preference to another candidate or not at all for the grave reasons provided in the law. On the other hand it is necessary in a democratic society that there is a measure of certainty as soon as may be in the composition and proper functioning of such an important public
institution as the Legislative Assembly. There is also the desirability that the Assembly’s membership performs its functions with equanimity and without being subject for a lengthy period of time to the pressures to which an overhanging petition may subject them. Lastly, the jurisdiction of the Court in these kinds of cases is a special one and is conferred by section 37 of the Constitution. And Parliament itself has prescribed, in pursuance of section 37(5)(a), the time limit of 21 days in section 45 of the Representation of the People Act as a condition for the presentation of the petition.” [our emphasis]
This Court cannot therefore condone the applicant’s choice of the remedy of judicial review where alternative specific statutory remedies are available to him. In fact, as correctly stated by learned Counsel for respondent No. 2, the applicant cannot be encouraged to forum shop or enter parallel proceedings seeking to usurp the functions of a court hearing an election petition and in the same vein bypass the clear set of procedures prescribed by the Constitution and by Acts of Parliament for the redress of any particular grievance associated with a general election. Were we to allow the applicant to proceed by way of judicial review to contest the 2019 General Election, we would in effect be running the risk of opening up a parallel electoral dispute resolution. We take notice that, in fact, several election petitions have been lodged before the Supreme Court in order to contest the election of returned candidates in a number of constituencies. In any event, judicial review remedy is not only quite distinct from an electoral petition but is also a remedy of last resort when all alternative remedies have been exhausted – see Ittoo v The Permanent Secretary, Ministry of Health and Quality of Life [2006 SCJ 20].
It is, accordingly, not open to the applicant to substitute some other form of redress to the specific form of redress which the legislator has deemed fit to provide in the Constitution and in the Act. The applicant has only himself to blame for the wrong choice of remedy and for his failure to adhere to the prescribed and mandatory time limit of 21 days to present an election petition. In this context, it is to be noted that this application was lodged some two months after the date of return of the 2019 General Election, which cannot be said to have been lodged promptly having regard to the subject matter of the present case.
There is an added reason why the objections of the respondents that judicial review remedy is not the appropriate remedy to invalidate the 2019 General Election must succeed. A judicial review remedy is quite distinct from an electoral petition. A judicial review application is dealt with by way of, and determined on, affidavit evidence. On the
other hand, in an election petition, witnesses are called and evidence is given viva voce in support of or in rebuttal of the complaints, grievances or allegations of the petitioner. Documentary evidence may also be adduced and challenged. Moreover, during the trial of an election petition, the Court may order the inspection of a rejected or counted ballot paper (section 46 of the Act).
As matters stand, the applicant is asking this Court, in a judicial review application, to decide on affidavit evidence election matters which would require the calling of witnesses to give evidence thereon, an assessment of their credibility and eventually a finding of facts by the court. We agree that the applicant’s complaints are matters which cannot be canvassed and decided in a judicial review application but which are on the other hand fit to be discussed in an electoral petition.
We may here aptly refer to the case of Jugnauth v Ringadoo  UKPC 50, a decision of the Judicial Committee, in particular to paragraph 36. The purpose of referring to that paragraph is to show that in an election petition witnesses are called and documentary evidence is adduced and the task of the Court is to make findings of fact based on the oral and documentary evidence adduced before it.
“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.” [underlining ours]
We shall now turn to a further ground of objection raised by respondent No.1, which is to the effect that the applicant has failed to put into cause all interested parties.
It is the applicant’s contention that the impugned decision is that of the respondents only and that he has accordingly rightly joined the respondents only to his
application. However, as stated above, we find that the applicant is in effect seeking an order from this Court to quash and invalidate the results of the 2019 General Election. In other words, the applicant is in effect contesting the results in the 21 constituencies and the election of the returned candidates and those nominated through the best loser system. In addition, serious allegations have been made against certain specified persons in paragraphs 36, 42 to 55, 72 and 78 of the applicant’s affidavit.
Assuming the applicant is right in his choice of remedy and wins the day, was it then not necessary for those persons against whom the applicant has directed his allegations and those who have been returned as elected candidates in the 21 constituencies to have been joined in the present application? The answer must be in the affirmative. Those persons are indeed and without doubt interested parties in whose presence the present application ought to be decided, the more so that they would be directly affected by the decision of this Court. As correctly pointed out by learned Counsel for respondent No. 1, the present application is a collateral attack on the results of the 2019 General Election and the applicant wants this Court to determine the issues raised in his affidavit in the absence of all the necessary parties.
We are comforted in our views by the following extract in Absalom and Others v Gillett  1 WLR 128 (a case cited by learned Senior Counsel for respondent No. 1):-
“We have been much pressed by Mr. Burrell with the argument that here there was only an issue between the petitioners and the returning officer, and that no prejudice was occasioned to the successful candidates by the fact that they were not joined. He says that the candidates could not have advanced any argument which could not have been put by the alderman (acting as returning officer), and that they would not have been allowed to present any submissions which purported to rely on any facts beyond those relied on in the alderman’s decision. If this argument was intended to suggest that it was just and fair that the successful candidates were not joined, we reject it out of hand. The alderman might choose not to resist the petition; in any case the candidates might wish to have their own advocate at court. Nothing could be more obvious than that a party whose very status as a democratic representative is sought to be impugned by litigation before the court should have the right to be heard. It makes no difference that the successful candidates might not have anything to say over and above the arguments of the alderman, whose decision had guaranteed their election. If this petition succeeds, their election would be invalidated.
We do not understand how it can be suggested that there is no affront to justice in the fact, which is agreed to be the result of the procedural steps taken or not taken in this case, that as things stand at present the successful candidates have no right to be heard on this petition. Mr. Burrell has submitted that they may not have wished to be heard, and their lack of
agitation on being notified of the petition may as a matter of fact support that view. But, in principle, we regard it as wholly elementary that successful candidates whose election is impugned by a petition such as this should be made respondents.”
True it is that it has been held that the failure to put all the necessary parties into cause at leave stage of an application for judicial review is not always fatal and may be rectified at merits stage (Seeboo v The Town Clerk, Municipality of Beau Bassin/Rose Hill [1994 SCJ 217]). However, the present case may be distinguished. As already stated above, this application is in fact an election petition under the guise of a judicial review. It should, therefore, ab initio have been made inter partes and put into cause all the necessary parties (Tsang Mang Kin v The Electoral Supervisory Commission [2006 MR 159] and Naik v Industrial and Vocational Training Board [2006 SCJ 144]).
Moreover, if we were to allow the applicant to put into cause all the interested parties at merits stage, we would be condoning the circumventing by the applicant of the strict procedural requirements pertaining to the presentation of an election petition, including the 21 days’ time limit.
In any case, the applicant is maintaining having put into cause all the necessary parties, with which we disagree.
In these circumstances, we uphold the objection of respondent No. 1 that the applicant has failed to put into cause all the interested parties.
For all the above reasons, leave to apply for judicial review is refused. The application is set aside with costs.
D. Chan Kan Cheong
20 October 2020
Judgment delivered by Hon. N. Devat, Judge
For Applicant: Mr. P. Rangasamy, Attorney-at-Law Mr. S. Bhadain, of Counsel (appeared in person)
For Respondent No. 1: Mr. A. Rajah, Senior Attorney
Mr. R. Pursem, Senior Counsel
Mr. A. Moollan, Senior Counsel
Mr. A. Adamjee, of Counsel
Mr T. Ramtale, of Counsel
For Respondent No. 2: Ms. V. Nirsimloo, Chief State Attorney Mrs. S. Beekarry-Sunassee, Assistant
Ms. D. Beesoondoyal, Principal State Counsel
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