Ashock Kumar Jugnauth v Raj Direvium Nagaya Ringadoo The Electoral Commissioner and Others (Co-respondents)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 05 November 2008 |
| Neutral Citation | [2008] UKPC 50 |
| Docket Number | Appeal No 58 of 2007 |
| Court | Privy Council |
| Date | 05 November 2008 |
[2008] UKPC 50
Privy Council
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]
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.
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.
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.
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.
Section 64(1) of the 1958 Act provides inter alia:
"Any person who -
(a) irectly 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."
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.
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. 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.
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.
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.
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)).
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...
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