After the government passed an amendment to the 2011 Local Government Act to push back municipal elections for another two years, the first legal challenge has already emerged; that of Rajen Valayden.
The case put forward is an interesting one; eschewing a frontal challenge to parliament's authority to push back the municipals, or even looking to the recent Privy Council ruling regarding Trinidad. Rather, it looks to point to contradictions of the government itself and how the current amendment is a significant departure from an earlier amendment the same government made in 2021.
1) What the challenge is not about
After the government brought through an amendment to the 2011 Local Government Act to push back municipal the move has already appeared: that of Rajen Valayden lodged on June 2. Another separate legal contest is envisaged by the by Rama Valayden. To get over the issue of locus standi, Rajen Valayden's case says that the extension of the term of the current municipal councils - elected in 2015 - for another two years has violated his right as a potential voter and candidate in ward 1 of Beau-Bassin/Rose-Hill. But before getting into the argument that the case is looking to convince of, it is important to underline what the case does not seem to be arguing.
Firstly, the case does not seem to be disputing the right of the National Assembly to extend the term of municipal councils. Mauritian political history has been chockfull of instances of governments delaying municipals and choosing to hold them only when political advantage can be maximized. In fact, municipal elections being delayed started pretty much with Mauritian independence, with the first such instance coming in 1968. This would make challenging the constitutionality of extending the terms of municipal councils a tall order: not only has it always been done, but there are no a strong position against such a move. Instead, the Supreme Court has traditionally viewed such laws as acceptable so long as proper parliamentary procedures have been followed in coming up with such legislation.
Secondly, for all the headlines it has generated in Mauritius, Rajen Valayden's case does not seem to be relying on the decision of the Privy Council (Mauritius' apex court) in the Maharaj case from Trinidad and Tobago on May 18 this year. The Maharaj case was based on two arguments: firstly, that the 2022 extension of the terms of local government bodies elected in 2019 from three to four years was unconstitutional. Maharaj tried to get a judge to judicially review the law and pass an injunction preventing the law from coming into effect. Both attempts failed. The case then went to the Court of Appeal, where it also failed before the case made it to the Privy Council. In London, it was not whether the the Maharaj case was decided simply on whether the amendment applied to local bodies officials that had been elected in 2019 - and hence, would get an extra year in office under the new law.
As Mauritian local government minister Anwar Husnoo told parliament last week, "the Privy Council held that the law did not apply to the incumbent councillors because the law was unclear on that issue". Ultimately, the facts between Trinidad and Mauritius the life of municipal councils automatically apply to the terms simply importing the Trinidad case to Mauritius and expecting Mauritian courts to reach the same conclusions.
2) The difference between 2021
The main crux of Rajen Valayden's case rests on how the power to postpone municipal elections via two different amendments to the same Local Government Act during the same term. Back on May 11, 2021, the government came up with an amendment to section 12 A(1) of the LGA 2011 to allow the government to postpone municipal elections in cases where "a period of public emergency is in force in Mauritius" and "there is, or there is likely to be, an epidemic of a communicable disease in Mauritius and a quarantine period is in force in Mauritius". In such cases, the 2021 amendment to the LGA allowed the government to push back municipal elections a year at a time for a maximum of two years.
However, during debates on the amendments on May 18, 2021, Husnoo introduced a change in the bill, essentially taking out "public emergency" as one of the reasons the government could rest on to postpone municipal elections. Explaining the change in 2021, Husnoo told parliament: "A period of emergency will not be a situation which would trigger the extension of the life of councils. Why, Mr. Speaker, Sir? This is more indicative of the genuine intention of Government, as well as meant to give further reassurance to the House as to the primary objectives of this bill.
Now the amendments will be only limited to situations of an epidemic or when a quarantine is in force in the Republic of Mauritius. Initially, it was thought appropriate to include a period of emergency in the proposals so as to circumscribe all possible circumstances in which the holding of the local elections would have to be postponed. However, the definition of an emergency situation is broader. Our main purpose today is to address a particular state of affairs, that is, the pandemic and for which we have to muster all our efforts to combat collectively."
The result was that the amendment that was passed in 2021 stated that municipal elections could only be postponed when "there is, or there is likely to be, an epidemic of a communicable disease in Mauritius; and (b) a quarantine period is in force in Mauritius". This new section was used to postpone municipal elections twice, once on June 11, 2021 and then in April 2022. What the 2021 amendment of the LGA did, Rajen Valayden's case argues, was place some limitations on the government's there is an epidemic and quarantine in force in Mauritius. In other words, in 2021, the executive voluntarily acknowledged that there were limitations to the extent to which it could effectively postpone municipal elections.
Today, after the introduction of the amendment to the LGA on May 23, 2023, the situation is not the same. Rather than argue that Covid-19 is the reason to postpone municipal polls yet again, this time Husnoo argued that the municipal polls had to be pushed back to allow the government to explore local government reform, including the creation of more municipal councils, redefining local government boundaries and holding general and municipal elections at the same time; and for that the two years would be used to "enable nationwide consultations with the members of government, parliamentary and extra-parliamentary opposition, local authorities and members of the public".
So, in 2023 a new subsection (1A) was added to section 12, which read that municipal polls could be postponed "at any time during the extended period of the life of the entire municipal city council and municipal town councils, or entire village councils under subsection (1), the President, acting in accordance with the advice of the Prime Minister, shall, notwithstanding subsection (1), further extend such life for a period of 2 years by proclamation". Under the 2023 amendment, municipal elections are not due until June 14, 2025, nearly a decade since the last poll took place on June 14, 2015.
The change between 2021 and 2023 is significant; unlike the 2021 amendment presented by Husnoo, the 2023 amendment, also passed by Husnoo amending the same part of the LGA, entirely removes that limitation that the executive placed on itself by limiting epidemic and quarantine. That too, in a space of merely two years reappraisal of the executive powers within the same law. "Here we have two amendments to the same law. In 2023 the same minister just came forward and says that we have to postpone the municipal elections. No reasoning given in the law and what effectively is a blank cheque now given to the government," argues Sanjay Bhuckory, one of the lawyers representing Rajen Valayden.
3) The Khoyratty case
By placing limitations on the government's ability to postpone municipal elections only in the case of an epidemic and quarantine in 2021, and removing such limitations entirely in 2023, Rajen Valayden's case argues that "the 2021 amendment and the 2023 amendment stand in stark contrast to one another, and provide for two diametrically opposite regimes at the hands of the defendants - the former being staunchly restrictive and certain, and the latter being overwhelmingly permissive".
This where the 2003 Khoyratty case comes in. At issue which prohibited courts from granting bail to those accused in drug cases. In that case, judges Bernard Sik Yuen and Paul Lam Shang Leen made legal history by arguing that section 1 of the constitution defined Mauritius as a democracy and which the amendment to the DDA breached by taking away the power of the courts to decide when to give and when to that Mauritian courts - as well as the Privy Council - made it possible to lodge cases based on whether a law breached general democratic principles (rather than specific sections of the constitution as was the attitude previously), similarly in Rajen Valayden's case, the Khoyratty example is being looked to for the courts to once again step in and rule that the 2023 amendment to the LGA is undemocratic by radically redefining the government's power to postpone municipals as compared to the same government's amendment to the LGA in 2021.
Put simply, free and fair elections are an essential tenet of Mauritian democracy enshrined in section 1 of the constitution, anything that interferes with that, without any limitations or safeguards, would be anti-democratic. And since the Khoyratty case, Mauritian courts are more than able to slap down such laws and rule them to be anti-constitutional.
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One obvious answer to the case lodged by Rajen Valayden is that the government could simply argue that differences between the 2021 and 2023 amendments are irrelevant since no previous law passed by the Mauritian parliament could bind its ability to 2021 amendment cannot possibly stop parliament from coming up with another amendment in 2023, even if it is radically different. This is where one possible implication of this case comes in; by limiting municipal election postponements only to cases of epidemics and quarantines, the 2021 amendment laid down an objective test to judge whether or not future postponements were legal.
"The specified reasons in the 2021 Amendment are objectively verifiable and thus amenable to judicial scrutiny in the event of any deviation therefrom by the defendants - whereas no reason is even required under the 2023 Amendment, such that, should the Defendants fail to carry out any nationwide consultation with the stakeholders, as undertaken by the Minister when presenting the 2023 Bill, the Defendants would be immune review."
In other words, another major difference is that whereas the 2021 made it possible for the courts to judge whether or not a postponement of a municipal poll was properly done judging by whether or not Mauritius was at the time in the midst of an epidemic or quarantine, by removing such limitations in the 2023 amendment, by removing any objective justifications for postponing municipal elections, what this latest amendment was done is also effectively close the door on the possibility of legally "There was an objective test laid down in 2021 that had to be fulfilled, whereas in 2023, this is not the case because there is no objective criteria set down to extend council," says Bhuckory.
Although this is not the main argument of Rajen Valayden's case at the outset, the possibility of this spinning off into a question of separation of powers is acknowledged in Valayden's own case where he says that "this case is also about the breach of the doctrine of the separation of powers, another essential tenet of democracy, also indisputably enshrined in section 1 of the constitution". In short, if the 2021 amendment opened a window for the judiciary to rule on postponing municipals, the 2023 ball is in the Supreme Court.
