Court to rule on PDM seat claim next week |29 November 2011

Court of Appeal president Francis MacGregor – who sat with judges Anthony Fernando and Mathilda Twomey – said they will give their ruling on Friday December 9.

Constitutional Court judges Fredrick Egonda-Ntende and Duncan Gaswaga declined PDM’s request to order the Electoral Commission to “make a fresh declaration and decision regarding the number of proportionately elected members on the basis that the term “votes cast” are “votes validly cast” in the September 29 to October 1 National Assembly elections.

The Constitutional Court’s third panel member, judge Niranjit Burham said he would have given the order on that basis, which is the argument PDM’s lawyer Basil Hoareau presented before the court yesterday.

Judges Egonda-Ntende and Gaswaga on October 25 said the Constitution – “which is the supreme law of the land” – contains several provisions which make it unnecessary to use inferior laws, but the PDM yesterday argued the two judges found it necessary to refer to a repealed part of the law while it would have been better to go by what the Elections Act says.

Attorney general Rony Govinden (AG) – who is a co-respondent with Electoral Commission chairman Hendrick Gappy – supported the PDM’s argument that the Constitution directs that other laws like the Elections Act be used, saying an election cannot be run on the Constitution only.

Mr Govinden – who normally represents the Electoral Commission – is in this case representing himself, while lawyer Frank Ally is representing the commission.

The two lawyers and the AG did not give direct answers to several questions asked by the bench.
“That question is very difficult to answer,” said Mr Ally at one time, when asked if it was necessary or not to refer to other laws apart from the Constitution in that matter.

Mr MacGregor asked if it was hard for them – whose case it is and they have the arguments to guide the court – how much harder will it be for the court, to which Mr Hoareau said:

“It will not be difficult, my Lords, we are leaving everything to you.”

After the September 29 to October 1 election, the commission allocated six seats to Parti Lepep on the basis of the 60% of the total votes they got, and none the PDM who got 7%.

The PDM has been saying they deserved a seat because they won 10.89% of the valid votes.

Judge Matilda said with different interpretations of various laws, the PDM could have got two, one or no seat.

If the court rules in favour of the PDM, the party is likely to get one proportionately elected member in the National Assembly, and Parti Lepep two more.