Below is the verdict of the Honourable Judge in my case against the Mauritian Political Mafia. The Judge sides with them, surprise, surprise.

Details of the case can be found here.

MUNISAMY R. L. (Dr) v
THE ELECTORAL SUPERVISORY COMMISSION & ORS

 

 

2010 SCJ 141

 

IN THE SUPREME
COURT OF MAURITIUS

 

Chambers

 

Record No: SN 705/2010

 

In the matter of:

 

Dr. Richard Luke
Munisamy

 

Applicant

 

v.

 

The Electoral
Supervisory Commission & 5 ors.

 

Respondents

 

In the presence of:-

 

Democratie Mauricienne
& 64 ors.

 

Co-Respondents

 

——

 

Judgment

 

After the dissolution of Parliament,
the 17 April 2010 was appointed for nomination of candidates for
general elections and the country is being called to the polls on the
5 May 2010.

 

The Electoral Supervisory Commission
(ESC) published the names of the 65 political parties and political
parties as party alliances (the Co-respondents) registered with it in
the issue of the Government Gazette dated 10 April 2010. The
applicant prayed for constitutional relief on the 19 April 2010 under
section 83 of the Constitution. That application, apparently made
without the assistance of legal advisers, was withdrawn on the 23
April 2010 upon applicant conceding that it contravened the Supreme
Court (Constitutional Relief) Rules 2000.

 

On the same day the applicant, by
proecipe signed by Mr. Attorney Bokhoree, made an application in
Chambers for two interim orders, one mandatory order and two
declarations, which I declined to grant, and I summoned the
respondents and the 65 political parties to show cause, as applied
for, why the prayers in exactly same terms should not be granted. On
the 27 April 2010, respondent no. 4 (the President of the Republic)
and the 65 political parties were put out of cause upon motion of
Attorney for the applicant. The case was fixed for hearing on
Thursday 29 April 2010, upon intimation that the ESC and the
applicant would exchange their affidavits in the meantime.

 

The ESC’s affidavit was solemnly
affirmed to on the 28 April 2010 and the applicant chose to swear, on
the same day, an affidavit prepared by himself on the stated reason
that he thought it wise to do so in view of the short time left
before the hearing. It is self evident that the hearing was fixed in
a matter of days in view of the imminence of the polling day, thereby
giving the applicant the opportunity to vindicate his grievances
before the polling day. Curiously enough, on the morning of the
hearing day, applicant’s Attorney caused a second affidavit in
reply to the ESC’s affidavit to be sworn.

 

Sir Hamid Moollan QC who appeared for
the ESC drew attention to a paragraph of the third affidavit of the
applicant which purported to incorporate the second affidavit drawn
up by applicant himself. He stated that it contained scandalous
material. Mrs. A. Narain, who appeared to the Electoral Commissioner
(EC) and the Attorney General (AG) additionally stated that the
affidavit contained unwarranted argumentation, a statement to which
Mr. Y. Jean-Louis, appearing for the Registrar of Associations and
Registrar of Companies, concurred. Mr. Bokhoree insisted on
production of the affidavit on the ground that it also contained
averments of fact and he added that he assumed his professional
responsibility in making that statement.

 

I ruled in favour of admitting the
applicant’s second affidavit.

 

This second affidavit contains three
pages in small font at close spacing consisting mainly what the
applicant himself terms “six possible arguments”. There
is only one averment of fact, that is, there are no political parties
registered with the Registrar of Companies. He took the opportunity
of adding two more prayers: (a) that I declare all general elections
held since the enactment of the Registrar of Associations null and
void, and (b) that I order the Director of Public Prosecutions to
investigate all potentially illegal activities associated with the
general elections and prosecute the perpetrators of the
contraventions of the law. The last paragraph of his affidavit reads

 

In the event that you refuse
to do so any of the above without due cause, in the authority of the
Constitution of Mauritius, I order you to resign your office for
failing to serve Mauritius and the Constitution and hence violating
your Judicial Oath.”

 

I am grateful to Mr. Jean-Louis who
referred me to a few cases where the Court was scandalised. It is
most striking that Mr. Bokhoree coolly insisted on the production of
the affidavit inspite of his attention being drawn to what was
considered by Counsel to be an outrageous statement made by his
client. I am referring a copy of the whole proceedings in this case
to the Director of Public Prosecutions for him to consider whether
any action needs to be taken against the applicant and Mr. Bokhoree.

 

Coming back to the initial five
prayers of the applicant, I take the view that four of the five of
them may be summarily rejected. The first prayer is for an order
prohibiting the co-respondents from participating in the elections.
There are no more any co-respondents in this case. I am unable to
make any orders against non-parties. Attorney requested me to
consider the third prayer as one compelling the Registrar of
Associations and Registrar of Companies to “sanction the
co-respondents”. The fourth is for declaration to the effect
that “all the candidates registered under the political parties
or alliances … … to be null and void”. The fifth
is for a declaration that all the political parties or alliances are
unconstitutional and unlawful. I refuse to consider the granting of
these orders as they are beyond my jurisdiction as Judge in Chambers.
It is a well known precept of our law that an injunction is
available to afford temporary protection pending a final decision on
the rights of parties, except for mandatory injunctions that are
granted in exceptionally strong cases, which I do not find the
present one to be.

 

I shall, therefore, consider the
second and only prayer left as being one for interlocutory injunction
prohibiting the ESC and the EC from allowing the 65 political parties
to participate in the general elections.

 

The first point
that calls for consideration is the standing of the applicant. The
applicant, aged 42 according to his National Identity Card number,
was, on his application made on the 23 January 2010, placed on the
register of electors for constituency no. 6. The register comes into
effect on the 16 August of this year. The averment that applicant is
not a registered elector for the coming general elections is hotly
contested by the applicant. He claims that his rights as a citizen
are at stake and his inability to cast his votes is due to the laches
of the ESC. It has also been argued that under section 83 of the
Constitution, the Court can make a declaration of violation of the
Constitution only when a person shows that the contravention is
against his interests. It is to be pointed out that the applicant
has merely undertaken to enter a main case under section 83. He has
not, so far, averred, with prevision, the section of the Constitution
which has been contravened, and affecting his interests. However, I
am of the view that these are matters which are best left for
consideration by the Court which will be called upon to hear his main
case. Now, although it has not been denied that he is a citizen of
Mauritius, he is not entitled, in terms of section 4 of the
Representation of the People Act, to vote at the forthcoming
elections. He does not have a say in the choice of the candidates,
whether standing as independent candidates or as members of political
parties, of his constituency to become elected members, or even to be
allocated additional seats under what is now called the Best Loser
System. I therefore find that applicant does not have
locus
standi

to enter the present proceedings.

 

On the merits of his application, it
is averred that the political parties registered by the ESC are
illegal, unregulated and unconstitutional. It would be a mockery of
democracy and a deplorable day for our Constitution if the political
parties were to be allowed to take part in the elections. An evil
precedent would result and the basis of our democratic system will be
shattered. The applicant’s contention is based on a
construction of paragraph 2(1) of the First Schedule to the
Constitution. That sub paragraph reads –

 

2 Registration of
parties

 

(1) Every political
party in Mauritius, being a lawful association, may, within 14 days
before the day appointed for the nomination of candidates for
election at any general election of members of the Assembly, be
registered as a party for the purposes of that general election and
paragraph 5(7) by the Electoral Supervisory Commission upon making
application in such manner as may be prescribed:

 

Provided that any 2 or
more political parties may be registered as a party alliance for
those purposes, in which case they shall be regarded as a single
party for those purposes; and this Schedule shall be construed
accordingly.

 

Had the applicant had standing, he
should have shown a serious question to be decided on the
construction to be placed on the expression “being a lawful
association”. His main contention is that the political
parties do not have corporate status, are not recognised by any
statute, and therefore cannot be recognised as lawful associations
for the purposes of the Schedule. I am of the view that the
applicant has adopted a quite narrow construction of the meaning to
be ascribed to the expression. The weight of the case-law in this
country and the language of the text goes against such construction.
I am saying so for the following reasons –

 

 

  1. (a)
    the
    applicant argues that by defining “association” in the
    Registration of Associations Act as excluding political parties, the
    legislature has violated the Constitution. The text is void for
    inconsistency according to section 2 of the supreme law. In the
    1949 Registrar of Associations Ordinance, “association”
    was defined as “two or more persons who have agreed to
    contribute by their knowledge, energy, fortune or other lawful means
    or by a combination of any of such means towards the attainment of a
    common object which shall not be pecuniary gain to themselves and
    which shall not be contrary to law, morality and public policy and,
    where the context so requires, means a registered association. In
    1978, when the new Act was passed “association” was so
    defined as to expressly exclude political parties. The applicant
    has not shown that he may be having such an exceptionally strong
    grievance as justifying a requirement to order the ESC not to act in
    compliance with a law of the land regularly enacted;

  2. (b)
    it
    has also been averred by the applicant that those political parties
    which are not registered with the Registrar of Associations should
    have been registered with the Registrar of Companies under section
    348 of the Companies Act. There is no evidence at all in the
    affidavits that the political parties consist of more than 20
    persons and that they have been formed to carry on business for
    gain, as required by that section. It is clear that section 348
    targets the regulation of entities formed for commercial purposes;

  3. (c)
    the
    concept of association has to be viewed in the context of the whole
    body of our law. Although legal personality has not been recognised
    for foundations or institutes without the sanction of an Act of
    Parliament or a charter, it has not been doubted that a political
    party has “
    personnalité
    civile

    recognised for “
    groupements
    following the famous decision of the
    Cour
    de Cassation reported in Dalloz 1954.217, the ratio of which reads –

 

Attendu que la personnalité
civile n’est pas une création de la loi, qu’elle
appartient en principe, à tout groupement pourvu d’une
possibilité d’expression collective pour la défense
d’intérêts licites, dignes par la suite, d’être
juridiquement reconnus et protégés; … …

 

The following
remarks from

Mr. Levasseur, Professeur à la Faculté de Droit de
Lille are
apposite

 

En effet, la Cour de
Cassation affirme que la personnalité découle de la
simple réunion de deux éléments: des intérêts
licites d’une part, une possibilité d’expression
collective d’autre part … … bien souvent il
dépendra des membres du groupement eux-mêmes de
construire le cadre qui les réunit et de prévoir les
moyens d’expression appropriés de la volonté
collective … … Certains groupements, dont les intérêts
propres et la réalité ne sauraient faire de doute, et
dans lesquelles l’expression de la volonté collective
est assez facile, peuvent voir désormais accroitre
l’efficacité juridique de leur action“.

 

See also Doucouré
v. Mahboob & ors. [
1977
MR 197
],
Mahboob v. Rabita-Al-Alam-Al-Islami & ors.[
1979
MR 181
];
PMSD v. François [
1982
MR 84
];

 

 

  1. (d)
    the
    general trend of case-law, including the judgments of the Judicial
    Committee of the Privy Council, is that the Constitution is not to
    be narrowly construed. By reading into the words “lawful
    association” a requirement that a political party should have
    the sanction of a statute or charter, we would be giving a
    restricted meaning, in my view, to the intention of the framers
    thereof. As was said by Lallah J (as he then was), “our
    Constitution, … … though permitting independent
    candidates to stand for election in the limited, though important,
    sphere of the direct election of members of Parliament, nevertheless
    expressly recognises, in Schedule I, the existence of political
    parties” – see Duval v. François [
    1982
    MR 84
    ].
    The Schedule also recognises the formation of party alliances
    consisting of two or more political parties. The alliances are
    regarded as a single party and are given a delay of 14 days before
    the nomination day to be registered. The National Assembly
    Elections Regulations 1968 provides for the manner in which
    application for registration with the ESC should be made, including
    the persons who are entitled to represent the parties, and for
    publication of notices of registration. There are, in my view,
    sufficient provisions made for the control of the parties by the ESC
    and those provisions have to be interpreted in such a way as to
    recognise the independent existence of political parties. See also
    Jugnauth v. Lutchmeenaraidoo [
    1990
    MR 342
    ]
    and Duval v. Duval [
    1991
    MR 1
    ].

  2. (e)
    as
    rightly pointed out by Mrs. Narain, the words “unlawful
    association” must be given plain meaning. In other words, the
    expression must be understood in the ordinary sense and mean no more
    than the political parties must be a group of persons, or a party
    alliance having political parties, the objects of which would not be
    contrary to law.

 

Finally I find that the balance of
convenience goes against the granting of the order sought for by the
applicant. This is a second attempt, made by means of an
infelicitously drafted application, after he had to withdraw a
procedurally wrong application made to the Court. On the other hand,
we have political parties and party alliances which have been
registered with the ESC and the polling is scheduled to take place in
a matter of days when the citizens of the country will elect their
representatives to sit in the National Assembly.

 

The application is devoid of any
merits. It is refused. With costs against the applicant. I certify
as to Counsel.

 

 

S. Bhaukaurally

 

Judge

 

03 May 2010

 

Judgment delivered by Honorable S.
Bhaukaurally, Judge

 

 

 

For
Applicant
: Mr.
K. Bokhoree, Attorney at Law

 

For
Respondent
: Mr.
A. K. Rajah, Senior Attorney

 

Sir Hamid Moollan, QC, of Counsel

 

Mrs. N. Mamode Ally, of Counsel

 

For
Respondent No. 2
: Principal
State Attorney

 

Mrs. A. Narain-Ramloll, Assistant
Solicitor General

 

Mr. Y. Jean-Louis. Senior State