Electoral Supervisory Commission Communiqué

ELECTORAL SUPERVISORY COMMISSION
COMMUNIQUÉ
At its meeting held on 15 January 2021, the Electoral Supervisory Commission
has been apprised of a letter dated 09 January 2021 which was handed over to
the Electoral Commissioner on 11 January 2021 by Mr Ashok Subron, acting on
behalf of the party ‘Rezistans ek Alternativ’.
The letter refers to certain information in the public domain and “…. call on you,
as Electoral Commissioner and to the Electoral Supervision Commission, to carry an
investigation and to determine whether any ‘illegal practice’ has been committed by any
candidates in the last general elections, which might warrant a prosecution for an
offence under the Act.”
The Act referred to is the Representation of the People Act.
The Commission draws attention to the Functions of Electoral Supervisory

Commission and Electoral Commissioner, as set out in section 41 of the
Constitution. Such functions do not extend to carrying out investigations into a
suspected criminal offence of illegal practice nor to determine whether the facts
might warrant a prosecution under the Act.
The Commission wishes to refer to the representations concerning electoral

expenses, which it made as far back as 2001 to the ‘Commission on
Constitutional Reform’ chaired by Mr Justice Albie Sachs. The Sachs
Commission, having heard representations from other deponents also on this
subject, stated the following at paragraphs 110 and 111 of its Report –
Para. 110: “It is common knowledge that ……. ceilings on expenditure are observed
only in their breach. Gross violations take place and false returns of expenses showing
all expenditure within the ceilings are filed with impunity, everybody fully conscious of
the fact that these returns do not reflect the true picture ..... This is [expenditure by third
parties on behalf of a candidate] a big hole in the law and in fact makes a mockery of the
whole issue of placing ceilings on expenses ..........”
Para. 111 : “We feel that the presently prescribed ceilings on expenditure are totally
unrealistic…”.
Moreover, the Sachs Commission, at paragraph 112 of its Report, recommended as

follows –
“We would also recommend that the returns of election expenses should be filed by the
candidates with the Electoral Supervisory Commission within 4 weeks of the completion of
the poll. Thereafter, the Commission should make these returns public within the next two
weeks. After publication of these returns, a maximum period of 21 days should be provided
for any one to challenge any election expenses return and for filing of an election petition on
that ground before a Court. Where satisfied that a candidate has not adhered to the
prescribed ceilings, it should be the duty of the Commission to apply to the Court seeking
annulment of the election.”
The above recommendations have not been implemented.
The Select Committee on the Funding of Political Parties, in its report dated
October 2004, recommended at its paragraph 3.8, as follows –
“Revamping the Electoral Supervisory Commission
The role of the Electoral Supervisory Commission should be reviewed and
strengthened to cater among other things for:
(a) receiving and making available for public inspection, disclosable donations, and
annual accounts reported to the Electoral Supervisory Commission by registered
political parties;
(b) investigating the financial affairs of the political parties to ensure compliance
with disclosure rules on party funding; and
(c) receiving, scrutinizing and investigating accounts of general election expenditure
by registered political parties and third parties.”
These recommendations have also not been implemented.
The Electoral Supervisory Commission further draws attention to articles 4 and

9 of its Code of Conduct, published in October 2019 for the purposes of the 2019
general elections, which reads as follows –
“CAMPAIGN AND ELECTION EXPENSES
4.1 All candidates undertake to keep their election finances and expenses transparent
and within the limits provided for by law.
4.2 They shall at all times bear in mind the consequences of not observing the provisions
governing the authorized amount of election expenditure, and in particular the criminal
sanctions for non-compliance
4.3 They renounce any resort to underhand means to disguise such expenses or to use
illegitimate means to obviate or circumvent the relevant provisions of the law.
REPORTING OF BREACHES
9.4 They (all participants to a general election) undertake to report forthwith to the
Police any act of illegal payment, bribery, treating, personation, illegal practice, breach
of the authorised amount of election expenditure; these acts being prohibited by the
Representation of the People Act.”
The Commission considers that, if the information referred to in the letter of

Rezistans ek Alternativ, and such other evidence in the possession of the
authors of the letter and which, in their opinion, may have resulted in any breach
of the provisions of the Representation of the People Act, they may wish to report
such matters to the appropriate law enforcement and investigatory authorities,
as set out in article 9.4 of the Code of Conduct elaborated by the Commission
for the 2019 general elections.
The Commission has been informed of the reply made by the Electoral
Commissioner to the letter of ‘Rezistans ek Alternativ’, and of his decision to
refer the matter to the Commissioner of Police, for any investigation the latter
considers necessary into any suspected electoral offence. The Commission is in
agreement with this decision of the Electoral Commissioner.
15 January 2021

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ELECTORAL SUPERVISORY COMMISSION

The Act referred to is the Representation of the People Act.

The Commission draws attention to the Functions of Electoral Supervisory

The Commission wishes to refer to the representations concerning electoral

Moreover, the Sachs Commission, at paragraph 112 of its Report, recommended as

The Electoral Supervisory Commission further draws attention to articles 4 and

The Commission considers that, if the information referred to in the letter of

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