Contradictory judgments, delaying tactics: ESC resists the bid from Jagutpal, Padayachy and Rawoo to go to Privy Council

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The Supreme court will have to décide on Kailesh Jagutpal (left), Renganaden Padayachy (centre) and Ismael Rawoo’s (right) motion.

The Supreme court will have to décide on Kailesh Jagutpal (left), Renganaden Padayachy (centre) and Ismael Rawoo’s (right) motion.

The Electoral Supervisory Commission (ESC) squared off against the motion tabled by Kailesh Jagutpal, Renganaden Padayachy and Ismael Rawoo for the Supreme Court to allow them to contest its decision on 30th October 2020 not to strike off parts of Lormus Bundhoo’s electoral petition demanding a recount in constituency No.13.

Arguing for the demand on Friday, Eric Ribot, counsel for Jagutpal, Padayachy and Rawoo, stated that there were “contradictory judgments” coming out of the Supreme Court in various electoral petitions over this issue. In several electoral petitions, the government candidates wanted the Supreme Court, under the Supreme Court rules 2000, to strike off parts of these electoral petitions filed by unsuccessful opposition candidates demanding recounts in some constituencies following the 2019 election. In the case of Bundhoo, the court refused to strike out parts of the petition alleging irregularities in the compilation of the register of electors and the choice of date for the elections, among other arguments. This was also the case in the petitions of Navin Ramgoolam (No.10), Suren Dayal (No.8) and Arianne-Navarre Marie, Veda Baloomoody and Louis Giovanni Catherine (No.1).

However, in other petitions such as those of Jenny Adebiro (No.19), Ezra Jhuboo (No.14) and Anil Bachoo (No.9), the court agreed to strike out parts of their petitions. “There are six judgments, three of which go in one direction and three of which go in the other direction,” argued Ribot, “we do not wish to go on appeal to the Privy Council because we see this judgment as good or bad, but because there are contradictory judgments.” He argued that section 82 of the constitution allowed for the three government candidates to appeal the Supreme Court’s decision on 30th October since “having certainty in the law and precedent” was of general public importance. Aside from asking for leave to go to the Privy Council, Ribot also asked for a stay on the electoral petition itself, since proceeding anyway would make the appeal to the Privy Council pointless and would prejudice the three government candidates by having them plead on “irrelevant matters”.

The Electoral Supervisory Commission (ESC), however, opposed the demand in court. Anwar Moollan, counsel representing the ESC, argued that there was no right of appeal under section 81 of the Constitution except under section 37 of the Constitution which lays down the grounds for such an appeal in section 48 of the Representation of People Act. Secondly, contrary to what the three government candidates were arguing, the request to go to the Privy Council was not a standalone procedure, but part and parcel of the electoral petition itself. Moollan termed it an “artificial trick” on the part of the government candidates. Thirdly, the parts excised in other petitions were deemed irrelevant and unnecessary that would have no effect on the electoral petition anyway and that it was totally improper. And finally, in the absence of a final decision from the court on the petition, to take mere pleading points in the initial stages of the petition hearings to the Privy Council. “The court should not allow this,” Moollan argued, “the procedure they (the government candidates – ed.) have followed is bound to cause delays.”

The court will decide on the matter. The decision on whether to allow this appeal to the Privy Council or not is pregnant with implications, since allowing the appeal to the Privy Council could result in similar motions appearing in other electoral petition cases calling for freezing the proceedings until the Privy Council has made a decision.

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