The Supreme Court has just ordered a recount in constituency no 19 (Stanley/ Rose Hill). Who is responsible for this mess and what are implications of this for those involved and for the rest of the constituencies where the results are being contested? Is a change looming ahead? We approach Constitutional Lawyer Milan Meetarbhan for some answers. Read between the lines…

The Supreme Court’s decision in favour of a recount in constituency number 19 is a breakthrough. What is your reaction?
A breakthrough indeed, to the extent that it is the first of the challenges that has been determined so far in favour of the petitioner. Some of the challenges have been withdrawn for technical reasons and one has been decided against the petitioner.

More to come?
We still have other electoral petitions which are yet to be heard and these include at least three where recounts have been asked for. If the facts in these three cases turn out to be the same as the one that has just been decided, then the court may well decide to grant the prayers for a recount. It must be pointed out though that the judges in the Adebiro case pointed out that the petitioner’s request had been granted exceptionally, on grounds which had not been initially pleaded.

So it is a breakthrough in more than one way, isn’t it?
Yes, also to the extent that the authorities and the ruling party had all along been giving the impression that the electoral process is fool proof, that everyone involved was infallible and that the challenges are only sour grapes from bad losers. When the court decides that there are grounds to order a recount, this puts paid to the confident posturing of the declared winners nationwide. It leads that section of public opinion which had been persuaded of the infallibility of the system to start wondering whether the challengers may have a point after all.

Many commentators regret the time it took. Why did it take so long?
The elections were held over two years ago. The electoral petitions were duly filed within 21 days. The reason why the delay for challenging an election is so short is, as judges themselves have acknowledged, that there must be certainty about the legitimacy of those who have been elected. In many countries, including some in our part of the world, electoral challenges have been determined within months. In Mauritius, the executive is an emanation of parliament and consequently if judges eventually decide that some MPs were not properly elected, then it would mean that during the years that have lapsed between the elections and the date on which the judicial decision is announced, there may have been decisions by both the legislative and executive branches of government which have been taken by those who did not have the legitimacy to do so. These may have far-reaching consequences. If we take the case of constitutional amendments which require a majority vote of three quarters of members of the National Assembly. Should the 53 members voting for the amendment include those whose election is subsequently found to be tainted, then the country may have to live with the consequences of constitutional amendments which were adopted by MPs who did not have the legitimacy required to support these amendments. We have all seen over the past couple of weeks the celerity with which the Australian courts dealt with the judicial review applications of Novak Djokovic. The second application was filed on a Friday and as the championship was to start on Monday, hearings were held on Saturday and Sunday and a decision was handed down on Sunday evening. In Mauritius, judicial review cases even at the leave stage sometimes take so long that there is no live issue anymore when the case comes for a hearing. We have a robust and respected judiciary which ensures that there is a fair trial where the rights of all parties are respected. There is however a need to also ensure the right balance between procedural safeguards and the public interest. Whilst all litigants may want a speedy resolution of their disputes, there are cases which may require more diligence from the parties concerned and the courts. May I say that there may have been delays in determining the electoral challenges but the Supreme Court in the Adebiro case handed down its judgment within a week of the final hearings. The court also decided in this case to be flexible on a major constitutional issue by allowing the case to proceed on grounds which had not been specifically pleaded in the initial petition.

In that particular judgment, the judges declared that “It is a matter of regret that all learned senior counsel, as well as the parliamentary counsel, did not deem it fit to make submissions in law on the principles that should guide this Court in deciding whether to grant a recount…” What is it that the counsel were supposed to do?
Lawyers make submissions to the courts on both facts and the law. We have a string of cases where courts have said that a recount is not granted just for the asking or even if both parties agree on the need for a recount. The court must be satisfied that there are valid grounds which warrant a recount. In the present case, the court would probably have expected the parties to offer submissions in law as to the principles that should guide the court in reaching a decision.

“The court decided in this case to be flexible on a major constitutional issue by allowing the case to proceed on grounds which had not been specifically pleaded in the initial petition.''

Didn’t they?
I must say that reference has been made to Indian case law on the legal principles regarding recounts. Though Indian case law on constitutional matters and generally on issues of public interest are often cited across the world because of the solid legal reasoning and what is often described as positive judicial activism, in so far as recounts are concerned India as the largest democracy in the world must count a billion votes in state and national elections from a million polling centres. If recounts are allowed on flimsy grounds, this could give rise to serious issues of governance. The strict rules which have therefore been adopted by Indian courts may not always be relevant to smaller juris- dictions. Even if recounts are allowed in 50% of the constituencies in Mauritius, that would mean 10 recounts but in India the figures would run into thousands.

What are the possible scenarios now?
There are basically two. One is that the recount confirms that Ivan Collendavelloo actually won more votes. The second is that a recount shows that votes were not properly counted and that Jenny Adebiro should have been declared the winner. Under the second scenario, there is some speculation about whether Collendavelloo would be entitled to a seat as best loser if the new results show that he had the highest percentage of the votes amongst unreturned candidates having declared their community affiliation as the “General Population”. In this case, would another unreturned candidate from that community who was appointed as best loser in 2019 have to give up his/her seat? Collendavelloo may, even if offered the best loser seat, decline the offer and thus maintain the status quo. In any case, all this is mere speculation at this stage as we don’t know what would be Collendavelloo’s percentage of the vote after the recount if Adebiro is declared the winner and whether the allocation of a best loser seat would be made on the basis of the amended results of an election which took place wo and a half years ago. This could be a conundrum which has to be sorted out by the judiciary.

Whatever the outcome of the recount, what is clear now is that there were irregularities. How do you apportion the responsibility for that?
We have to realise at this stage that a recount may not only confirm the winner announced after the elections in 2019 but may in fact even give him a higher margin. Even if this is the case, the reasons why discrepancies have occurred and the remedial measures required to ensure the integrity of future elections must still be considered. If the recount confirms the result announced immediately after the election, some politicians would seek triumphantly to argue that they have been vindicated and that the electoral process is safe and sound. The fact that discrepancies have been noted will not go away. A candidate might have won an election in spite of “irregularities” and not because of the irregularities. This is no reason why these so-called irregularities must not be acknowledged and remedial measures taken before future elections.

What exactly is the role of the Office of the Electoral Commissioner and the Electoral Supervisory Commission?
Under our constitution, the Electoral Supervisory Commission (ESC) is responsible for supervising the registration of electors and the conduct of elections. The electoral commissioner, who is appointed by the Judicial and Legal Services Commission, is to some extent like the executive arm of the commission. It’s often been argued that the ESC should have wider powers. Now parliament can enlarge the powers either by amending the constitution or, in some cases, by enacting new legislation. But as there is no realistic prospect of this happening anytime soon, the question that we may ask ourselves is to what extent the commission itself can give a broader interpretation of its powers as others have done overseas. One should not forget that members of the ESC are also members of the Electoral Boundaries Commission which is charged with the review of boundaries of constituencies and making recommendations for changes to the National Assembly every 10 years. This is an important function and given our electoral system, changes in electoral boundaries can have a major impact on the out- come of the elections and who governs the country.

This is quite dangerous considering the public perception of the ESC in particular after the recent nominations, isn’t it?
Members of the two commissions must therefore be of impeccable integrity, be independent and be seen to be independent. If they are perceived as lacking independence because of their professional, political or family connections with politicians, the people will not trust their supervision of elections or their recommendations as to boundary changes. If for instance it turns out that a member of the Electoral Commission has been paid by the Sun Trust for professional services rendered to a party leader, then the public may rightfully question the whole matter and trust in the commission may be impaired.

What do all these ladies and gentlemen do between elections?
Membership of the commissions is not a fulltime position but the electoral commissioner and his staff are fulltime public officers. In between general elections, I guess that they work on registration of electors, conduct of municipal and village council elections and by-elections. I understand that they often act as election observers in foreign jurisdictions.

Do they have the power to highlight irregularities when they occur?
I believe they not only have the power but also the duty to conduct a proper audit after each election to assess the shortcomings, the “irregularities” and everything that can be done better next time. I do not know whether this exercise is systematically carried out.

What happens if that they do find out that there were “irregularities” noted in the course of the exercise?
A related question is: in case there is an electoral petition filed in connection with an election where such “irregularities” have been discovered, what should be the stand of the commissioner and the ESC, even if the petitioner was not aware of these irregularities and did not specifically plead these? We should also ask ourselves what do they do if they find glaring anomalies in the results in one constituency but there has been no challenge to these results?

We know the answer to those questions, don’t we? The judgment also highlighted the fact that “a recount is not obtained by consent”. What does this mean for the rest of the petitions?
Yes, our caselaw lays down the rule that recounts are not obtained by consent, i.e even if all parties tell the court that they do not object to a recount, the court may still decline to grant the recount. One may take a different view specially in smaller jurisdictions where numbers are not so huge. Now this may obviously also mean that a recount can be ordered by the court even if the election authorities object. It appears that there may have been a change of heart on the part of the authorities after what happened in the recent case. This does not necessarily mean that the courts will not be able to order a recount. If the court is persuaded that there are grounds to make such an order and that the circumstances warrant consistent judicial approach in ordering recounts, they may still do so.

Several of the petitions lodged focused on the opacity of the computer rooms. That has already been settled in the case of Ezra Jhuboo’s petition with the judges deciding that the petitioner could not prove that there was a connection between the computer rooms and the results. So what now?
The computer rooms have given rise to a lot of concern. I believe that it would have been difficult for petitioners to gather enough evidence within the three weeks available to them to set out specific concerns. They probably could only raise a general concern about the fact that they had not been informed of these computer rooms, that they did not know what these were for and what controls were in place with regard to data provided and the treatment of the data. Now if for instance the figures as compiled by a returning officer contained glaring anomalies and the treatment of these figures in relation to or in the course of the IT processing was also not carried out properly or adequately, then how does one obtain sufficient information shortly after an election to plead these in one’s petition.

Even if all these petitions are successful, the MSM will stay still in power, won’t it?
Even if recounts are ordered in constituencies where such recounts have been prayed for, the results may effectively maintain the balance of power in the National Assembly. Should new members from the opposition be elected, the government would still have a majority, albeit a reduced one.

Does your crystal ball tell you about any major political events to happen this year?
With regard to electoral petitions, I believe that the outcome which people will be waiting for is that of constituency no 8. The hearings have been concluded and judgment is awaited anytime this year. Whatever may be the outcome, an appeal to the Privy Council cannot be excluded. This is what the petitioner would probably do if he loses the case and if there are good grounds on which to appeal. Now if the defendants lose the case, they may still appeal or they may resign and call for a by-election or since one of the defendants currently serves as prime minister, he may call for dissolution of the Assembly and fresh elections to obtain a new mandate. However, we have to remember that if a court finds that election offences have been committed, those responsible may not be eligible to stand as candidates in a by-election or a general election and would rather opt for an appeal to the Privy Council.

Hence the opposition’s sudden willingness to unite or – should I say – reunite. On a personal level, are you in favour of such an alliance?
As far as I know, there are talks about better coordination between opposition parties in parliament and an alliance or arrangement between opposition parties for the next municipal elections. My own view is that better coordination among parliamentary groups may be good for our democracy.

What about a coalition for the municipal elections?
As far as municipal elections are concerned, my view is that there may be two options available: one is the conventional route which enables all parties in the alliance to have candidates in all wards and then there is a sharing of power if elected. The other option would be for the parties to agree that each of the three parties would have a majority of candidates in specified municipal areas and that for instance Party A has a majority of candidates in Port Louis and Quatre Bornes and would then govern these municipalities if elected, whilst Party B would have a majority of candidates in Beau Basin Rose Hill, Party C a majority of candidates in Curepipe whilst all parties will have an equal number of candidates in Vacoas- Phoenix and if elected have a rotating mayorship there. However, I am aware that parties will not be certain that their supporters will in fact mutually support each other’s candidates under such an arrangement.