His case was the first to emerge challenging the government's recent extension of municipal councils for another two years. While Valayden has put forward a nuanced case, what is the government's response?
History and the constitution
Rajen Valayden's case on June 2, was the first to challenge the government's decision to push back municipal elections for another two years. While not disputing the right of the National Assembly to extend the term of municipal councils, Valayden has put forward a nuanced challenge. But what has been the state's response?
The first question is about whether this case concerns the constitution at all. In its plea lodged on July 24, the state's lawyers point to the fact that the constitution does not specifically mention municipal elections, still less how long such a term must be. "The constitution is silent on local elections, including municipal council elections," the state's lawyers have argued in court, "such that a change in the length of the terms of local elected office holders does not and cannot amount to a contravention of the constitution."
To help bolster its point, the state's legal team points to the long history of municipal elections being postponed: in 1966, the replacement of the municipal council of Vacoas-Phoenix by a commission in 1971; the replacement of the municipal councils for Port-Louis, Quatre-Bornes, Curepipe and Beau-Bassin/Rose-Hill by similar commissions in 1974 with municipal elections only being held in 1977; then elections being suspended again between 1979 to 1982; then municipal elections being delayed until 2012, and so on. This recounting of history, while situating the leeway that previous governments have exercised when it comes to holding municipal elections is not particularly germane to the specific argument that Valayden is looking to make. Specifically, the implications of the differences between the 2021 and 2023 amendments to the Local Government Act.
The 2021 and 2023 amendments
What Valayden's case argues is a very specific point: the amendment to the LGA in 2021 to push back municipal elections was quite exceptional; that particular amendment presented by local government minister Anwar Husnoo restricted the circumstances in which the government could effectively delay municipal elections to a period where there was an epidemic and a quarantine in force. In other words, it was the first time that a government voluntarily acknowledged a limitation on its ability to postpone municipal elections. In the recent 2023 amendment, however, no such limitations were put forward. "The 2021 amendment and the 2023 one stand in stark contrast to one another and provide for two diametrically opposite regimes at the hands of the defendants," Valayden's case insists, "the former being staunchly restrictive and certain; and the latter being overwhelmingly permissive."
In response to this point, the government's lawyers rely on a twin set of arguments: the first is that the 2021 amendment to the LGA was something quite specific to the Covid-19 context and was not intended to lay down a rule about municipal elections in the future. "The 2021 amendment represents a specific piece of domestic legislation, passed into law in the exceptional circumstances of the Covid-19 pandemic. It does not, and does not purport to consecrate, enshrine, or otherwise reflect any wide principles of Mauritian law or international law."
The second counterargument to Valayden being brought in the Supreme Court is to point to the principle that parliament's power to pass new laws cannot be limited by an older law. On the one hand, even if Husnoo could be said to acknowledge a limitation of the government's power in 2021, this was something "concerning an entirely separate piece of legislation," that is irrelevant when it comes to the newer 2023 amendment. And the state's lawyers add "that any limitations on a power enshrined in legislation cannot sensibly be inferred or implied from the amendment or deletion of wording from an earlier statute". In other words, whatever happened in the 2021 amendment is irrelevant when looking at the 2023 one currently on force and which it supersedes.
Valayden's case is essentially asking the court to step in and decide on this dramatic lifting of the limitations on the state's ability to postpone municipal election. To do so it looks to the example of the 2003 Khoyratty case (in that case, slapping down a law restricting bail in certain cases, something the judiciary saw its own preserve rather than that of parliament) where the courts stepped in to define an implied part (the separation of powers) of the democratic definition of the Mauritian state. In its response, the state reiterates that this is not a constitutional matter since municipal elections are not mentioned in the constitution: "the system of local government in Mauritius is the product of an ordinary act of parliament as opposed to being a constitutional creature".
Separation of powers
Another point made in Valayden's case is that this is also a problem of the separation of powers between parliament and the judiciary. By limiting the delay of municipal elections to just situations of epidemics and quarantines in 2021, what that amendment did was set down a test that was "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 from judicial review".
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Put simply, under the 2021 amendment, there was a theoretical possibility of somebody going to the courts to contest a decision to delay municipal polls where the country was not suffering from an epidemic or quarantine in force, whereas by lifting any such objective limits what the 2023 amendment does is effectively close the door on any such judicial scrutiny when it comes to delaying municipal elections now. Hence, Valayden argued, "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".
What is the state's response to this particular point? Rather than potentially being in conflict with the separation of powers, the 2023 amendment is rather "the product of the separation of powers in action, where the power therein has been conferred by the National Assembly (following the correct and proper procedures) and is exercisable by the President only on the advice of the Prime Minister". In other words, that this is just parliament doing its job in passing a law. And that as long as the proper procedures have been followed, this is parliament's business, and not that of the courts.
