The former Attorney General and current spokesman of Linion Pep Morisien (LPM) has floated the idea of legally challenging the government's move to postpone municipal elections for another two years. Here is why, if such a case is to succeed, it would require a radical overhaul of the court's own views about elections.
Nothing in the constitution
On Tuesday, the government pushed through the Local Government (amendment) bill that has pushed back municipal elections for another two years. Just ahead of this parliamentary session, the spokesman of Linion Pep Morisien (LPM) announced his intention to challenge such a bill in Mauritian courts.
There is nothing too strange about the government's move, Mauritian history is full of examples where municipal elections have been delayed - and even municipalities themselves abolished - on occasion. In 1974, for example, after breaking with the PMSD, the Labour Party simply suspended the functioning of four elected municipal councils - Port Louis, Beau- Bassin/Rose Hill, Quatre-Bornes and Curepipe - that were dominated by their erstwhile ally, replacing them with government-appointed commissions. Following that episode, there is a long list of governments simply postponing municipal elections. "This is not the first time that this happening, only that it is now happening more frequently," says Vinod Boolell, former judge of the Supreme Court.
Similarly, the current municipal councils in place have been there since the last local polls in the five towns back in 2015. And it is the operation of these municipal councils that the recent amendment has extended by another two years, before by citing the Covid-19 pandemic, and now by citing a proposed reform of the apparatus of local government. Why this has been possible is because unlike national-level elections, which are mandated to be held every five years by a specific provision within the constitution, when it comes to municipals, the constitution says nothing. "When the MMM-PSM bloc came to power in 1982, they wanted to make sure that no government would be able to postpone general elections again. At the time nobody gave a thought to municipal elections," says Boolell.
What is a 'democratic' state?
SO, will the constitution being silent about municipals be a problem for any legal challenge to postponing municipal elections? The answer is in the affirmative and for two reasons. The first is that although section 1 of the Mauritian constitution describes the state as a "democratic" one, exactly what that democracy should look like, the Mauritian courts have preferred to leave it to parliament to decide. And so, when in the early 1970s, a series of legal challenges arose against the extension of parliament until 1976, and the abolishing of by-elections at national level, the courts refused to label this as an unconstitutional act.
In the 1973 case of Vallet (in which Sir Anerood Jugnauth was one of the lawyers taking on the state), what was asked was that the Supreme Court order the then-government led by Sir Seewoosagur Ramgoolam to order a by-election in Curepipe. The argument was that since section 1 of the constitution described Mauritius as a democratic state, any move to abolish a by-election should be implicitly unconstitutional. What the court argued was that since the constitution itself did not define what 'democracy' means, the Supreme Court argued three things: one that it should not step into parliamentary territory; two, that a court cannot make laws on its own and that unless a law or government decision could be demonstrated to be directly in violation of a part of the constitution, it would be generally presumed to be valid. In 1973, the Supreme Court held that the postponement of general elections was not unconstitutional under the constitution as it stood then.
In the case of Bérenger, who that same year contested a constitutional amendment extending parliament until 1976, the court concluded: "We consider that the question of whether or not parliament had acted reasonably and in good faith is irrelevant. The court has to be satisfied that the alteration was made in accordance with the procedure laid down in the constitution and that it is not inconsistent with the constitution. In our view, the court cannot go beyond this and enquire as to the reasonableness of the Act or the motive behind the making of it.
The legislature does not have to satisfy the court that it acted reasonably and in good faith. Whether or not it has a moral duty to satisfy the electorate, it is not for this court to say. We consider it highly undesirable that the court should be put in a position where it might feel tempted to express opinions on matters of a purely political character. It is our opinion that the court should not be expected to deliver certificates of reasonableness or unreasonableness, good faith or bad faith, unless it is required by law to do so".
In the Lincoln case of 1974, also contesting the abolishing of by-elections, the court said pretty much the same thing, "facts are now immaterial except insofar as it would be necessary to enquire whether the procedure laid down in the constitution itself for its alteration has been complied with. Once the question of procedure has been settled, the only question that will arise will be one of law, whether there exists in the constitution itself any limitation on the power of parliament to amend its provisions in the manner in which the act has been done."
What this history shows, Boolell says, "is that parliament is empowered to regulate its own business and that courts will not interfere in the business of parliament. The courts have said clearly that it is not here to decide on what happens in parliament". If the law has been passed properly in parliament, as the postponement of municipal elections through an amendment to the Local Government Act was, the courts will not step in.
Beyond section 1
The second problem is that since the courts have not traditionally been willing to slap down legal amendments properly passed through parliament, "the only other way is to challenge this on the grounds of constitutionality" says constitutional lawyer Milan Meetarbhan, who has authored a commentary on the Mauritian constitution. "If you pass the test of locus standi, then the traditional view in the courts has been that you have to point to where a law breaches a specific provision of the constitution."
Traditionally, it has not been enough just to say that a move is anti-democratic and therefore against section 1 of the constitution that says Mauritius is a democratic state. "If there is nothing in the constitution about municipal elections, how can you say that postponing them is unconstitutional?" says Meetarbhan, "If there is no specific part of the constitution that talks about municipal elections, it's unlikely that you would be able to point to a specific part of the constitution to say that it has been breached."
The result is that although there is plenty of legal history when it comes to cases about national elections - which are mentioned in the constitution - there is precious little case law to go by when it comes to cancelling or postponing municipal elections - which are not. Just how much of a problem municipal elections are from being absent in the constitution can be illustrated by two cases.
The first is one brought by the UDM in 1990 that wanted the courts to say that regulations requiring candidates in national and municipal elections to put in deposits before standing in was unconstitutional. In the UDM case, what the court found was that although asking candidates standing in parliamentary elections was unconstitutional since it technically breached constitutional rules relating to the eligibility to become a parliamentarian, it could not reach the same conclusion about municipal councils since there was nothing in the constitution about that.
"So, it is not possible to question the requirement of a deposit from candidates at elections for municipal or village councils on the ground that this violates section 1 of the constitution." On the same issue in the same case, the court reached two different conclusions in two different types of elections based only on the fact that one was mentioned in the constitution, while the other was not.
Then there is the case of Nuckcheddy in 1996, who questioned the decision of the Electoral Supervisory Commission that, following two murders in Port-Louis, decided to postpone municipal polls in wards 3, 4 and 5 of the capital from October 27 to November 17, 1996. What Anil Gayan, who was a lawyer in the case, argued was that since the President had already set the date of municipal elections, the ESC could not then change the date for only certain wards across the five towns in the country.
Citing the first time that municipal elections were postponed back in 1968, the court in that case set out that "unless and until such date has been fixed by the President on the advice of cabinet, Parliament retains the power to provide, by way of legislation and subject to the constitution, for the postponement of the elections". In that particular case, the court concluded that while parliament had the power to postpone municipal elections, after a president, on the advice of cabinet, sets a date for municipals, the ESC too had the power to change the date on which such an election would be held.
Trinidad and evolution
If the courts have traditionally clung to the view that it will not challenge laws properly passed in parliament and that it's not possible to legally challenge such legislation merely by arguing that it's undemocratic, according to section 1, without showing another more specific part of the constitution it breaches (and municipals, again, are not mentioned in the constitution) this would pose an obvious problem for the prospects of success of any legal challenge to the current postponement of municipals as envisaged by Valayden.
One may reach for the recent case decided at the Privy Council (the apex court of the Mauritian legal system) on May 18, 2023, regarding Trinidad and Tobago. On the face of it, the parallels seem obvious: like Mauritius, their constitution too does not explicitly talk about municipals and the law in question there too was about extending the life of local government bodies.
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"The Privy Council is the highest court of the land, but its decisions are binding only on the state where the case comes from, not on others. Obviously, it can only have an effect so long as the issues are similar, in which case such decisions can be persuasive," argues Meetarbhan. But this is where, according to local government minister Anwar Husnoo in parliament on Tuesday, the similarity with the Trinidadian case ends. "It was not the amendment itself that was held to be unconstitutional... the main issue before the Privy Council was whether the extended period (the amendment in Trinidad extended the tenure of local bodies from three to four years - ed.) applied to incumbent councillors.
The Privy Council held that the law did not apply to the incumbent councillors because the law was unclear on that issue." Hence, according to Husnoo, the Trinidad case does not apply to Mauritius where the Local Government Act already dictates that any extension of the life of municipal councils automatically extends the mandate of municipal councillors serving on them.
The ultimate issue with legally challenging the postponement of municipal elections is that this would entail a dramatic reappraisal of how the Mauritian courts themselves have viewed such matters. Difficult, but not impossible, however. The rule of courts deeming section 1 describing Mauritius as a democracy as not being enough to challenge a law as being anti-democratic - and the courts unwilling to colour its own views about what it means to be a democracy - has been abandoned in the recent past. This was by a pair of Supreme Court judges, Bernard Sik Yuen and Paul Lam Shang Leen, who together decided the Khoyratty case in 2003 that went down as a landmark in Mauritian legal history.
At issue was an amendment to the Dangerous Drugs Act that denied bail to people accused in drug cases. What Sik Yuen and Lam Shang Leen did was go beyond the courts' traditional reluctance to define what Mauritian democracy is, or should look like, and interpreted section 1 to mean that as a democracy, separation of powers was implicit in such a formula.
Hence, Parliament could not step onto judicial turf by deciding who gets or does not get bail. But that case of course concerned separation of powers and the judiciary feeling encroached upon by parliament and was decided by two judges willing to break with the traditional attitudes that Mauritian courts have always had. There is no guarantee that a similar set of fortuitous circumstances can favour any legal challenge envisaged by Valayden. Here is Boolell: "Politics has to be kept out of it. We cannot just mix politics and the law."
