MARIE D. S.

& ORS v THE ELECTORAL COMMISSIONER & ORS 2010 SCJ 138 IN THE SUPREME COURT OF MAURITIUS In the matter of: SCR No. 104032 Dany Sylvie Marie & Ors Applicants v. The Electoral Commissioner & Ors Respondents

And in the matter of: SCR No. 104033 Dhojaven Vencadasmy & Ors Applicants v. The Electoral Commissioner & Ors Respondents

JUDGMENT

On 26 April I have already given an oral judgment in respect of the present applications which were consolidated. As indicated therein I am now setting down the reasons for my decision.

General Elections are scheduled to be held in Mauritius on 5 May 2010 and nomination day was held on 17 April 2010. The applicants Nos. 1 - 60 in SCR No. 104032 are members of a political alliance called Platform Pou Enn Nouvo Konstitisyon: Sitwayennte, Egalite et Ekolozi

2 which has been registered with the Electoral Supervisory Commission at the initiative of Rezistans ek Alternativ and which alliance was minded to take part in the elections. The

applicants in SCR No. 104033 are candidates not belonging to any political party who proposed to stand as independent candidates in the general elections.

In furtherance of this intention, the applicants in both cases submitted to the respective Returning Officers in the constituencies in which they proposed to stand as candidates their nomination papers without filling in item 5 of Part II of the nomination papers thus omitting to make a declaration as to which community they belonged, pursuant to paragraph 3 (1) of the First Schedule of the Constitution. It is their contention that they are either unable or unwilling to categorise themselves as belonging to any of the four communities specified therein i.e. Hindu, Muslim, Sino Mauritian or General Population. At the time of presenting their nomination

papers, the applicants in SCR No. 104032 have already signified in writing their refusal to benefit in any manner whatsoever from the Best Loser System and the applicants in SCR No. 104033, not belonging to any party, are not eligible to benefit from the Best Loser System.

In the absence of such declaration, the Returning Officers have, pursuant to Regulation 12 (5) and 11 (b) (iii) of the National Assembly Elections Regulations 1968, declared the nomination papers invalid.

The applicants have now under Regulation (11) (e) (i) of the Regulations applied by way of motion for an order from this Court directing the respective Returning Officers to insert their names on the list of candidates for the forthcoming elections.

It is the contention of the applicants that the Returning Officers were wrong to reject the nomination papers inasmuch as:

(1) the absence of a declaration as to which of the stated communities they belonged to did not invalidate their nomination, contrary to what is provided for in regulation 12(5) of the Regulations, (2) regulation 12(5) is ultra vires the Constitution in that particular respect, (3) to construe paragraph 3 of the First Schedule of the Constitution as empowering the legislator to prevent a citizen who does not make the community declaration from presenting his candidature to general election is repugnant to Section 1 of the Constitution which provides that Mauritius shall be a sovereign democratic State.

The precise questions that the Court has to decide therefore are whether: (a) on a proper interpretation, paragraph 3 of the First Schedule should be interpreted as giving authority to the Mauritian Parliament to provide, in Regulation12(5) of the 1968 Regulations, that a nomination is invalid when the declaration as to community has not been made. (b) section 12(5) is ultra vires the Constitution.

The applicants have conceded that the issue raised in the present case, has been decided by the Full Bench of the Supreme Court in the case of The Electoral Supervisory Commission v. The Honourable Attorney-General [2005 SCJ 252]. The Full Bench held that pursuant to paragraph 3 (1) of the First Schedule of the Regulations made thereunder, prospective candidates at a general election are under a legal obligation to declare in their nomination papers the communities to which they belong failing which, their nomination papers will be held invalid by their respective Returning Officers.

The applicants contend that the judgment of the Full Bench no longer holds good inasmuch as in reaching its decision, the Full Bench endorsed the principles expressed in the

4 case of UDM v. Governor General & Ors [1990 MR 118] as to the manner in which the concept of a democratic State which appears in Section 1 of the Constitution, is to be construed.

Counsel submitted that this approach is no longer valid in view of the analysis made by the Supreme Court in the case of Police v. Khoyratty [2004 SCJ 138] in which case, in reaching its decision, the Court analysed the concept of democracy in respect of the powers of the Judiciary to grant bail, not only in the light of the provisions of our Constitution but also as it obtains in different democratic States.

This approach was endorsed by the Privy Council in its judgment delivered in March 2006 in the case of Khoyratty [2006 UKPC 13]. This decision was subsequent to the decision of the Full Bench in the Electoral Supervisory Commission case.

It is the contention of the applicants that the decision of the Full Bench does not hold good in the light of the subsequent pronouncement of the Judicial Committee in the case of Khoyratty and in particular, that paragraph 3 (1) of the First Schedule providing that a prospective candidate shall declare his community, was not interpreted in the light of the overriding principles which should prevail in a true democratic State. The applicants have

further contended that the Full Bench did not consider whether disqualifying a candidate because of his failure to make a declaration as to his community, was compatible with generally accepted standards in a true democracy. According to them, the judgment of Khoyratty makes it necessary for this Court to reconcile paragraph 3 (1) of the First Schedule of the Constitution with the generally accepted standards of democracy in relation to permitted restrictions to candidature.

5 On behalf of the respondents it was contended that the applicants have acted deliberately and in concert so as to impede the electoral process which has come to a halt inasmuch as ballot papers cannot be printed until the exact number of candidates in each constituency is ascertained.

It is the contention of the respondents that the issue raised by the applicants has already been pronounced upon by the Full Bench and further the Court is by this application, being invited to interfere with the legislative process, a matter upon which the Judiciary should not embark.

Counsel argued that each country should decide as to the type of democracy and electoral system that it wants, that our society is a multi-communal one, with some communities being the majority and others a minority. Protection of the minority communities also forms part of a democracy and in order to ensure a fair representation within the Legislative Assembly, our Constitution has provided for the Best Loser System which ensures both that minorities are adequately represented and that the will of the population as expressed by the ballot papers, is also respected. The Constitution has accordingly provided for the nomination of eight additional candidates who are to be determined by following the intricate and elaborate method laid down in paragraph 5 of the First Schedule of the Constitution.

The respondents have also argued that in order for the system to function properly, it is indispensable that all candidates make a declaration as to the community to which they belong.

It was also contended that the jurisdiction exercised by the Judiciary under Regulation 12 (5) is a special statutory jurisdiction with the specific purpose of pronouncing upon the validity of the decision taken by the Returning Officers and either to confirm or reverse the

6 Returning Officers decision. It is not for the Court to decide on such an application whether there has been a breach of the applicants constitutional rights. The Constitution provides for specific procedures for challenging the validity of constitutional provisions and relief may be sought either under Section 17 or 83 of the Constitution. The procedure under Regulation 12 (5) is not appropriate for such general and far reaching decisions on the Constitution, the more so as the other candidates who have an interest at stake, have not been joined in the application. It is also submitted that the present application is an abuse of the process of the Court and is hampering the Electoral Commission in the discharge of its obligations.

I have considered the arguments of all Counsel and the case law on the matter.

In the case of Narrain and ors v The Electoral Commissioner and ors [2005 SCJ 159], where the same issue arose, Balancy J whilst agreeing that: It was within the spirit of the Constitution that laws be made to ensure the proper functioning of the Best Loser System which despite many adverse criticisms nonetheless forms part of our Constitution held that the provision imposing the sanction of nullity of nomination for non declaration of community, is tantamount to an unjustified curtailing of the citizens constitutional right to stand as a candidate for elections as a member of Parliament at general elections. Section 1 of the Constitution proclaims that Mauritius is a democratic State and the right to stand as candidate at general elections is one so fundamental for the existence of true democracy that it cannot be easily tampered with.

He held that: The provision in paragraph (5) of regulation 12 of the National Assembly Elections Regulations, 1968, is to the extent that it purports to provide that the nomination of a candidate in view of a general election shall be deemed to be void and of no effect if

7 he has not made a declaration in compliance with paragraph (4) (c) of that regulation, is repugnant to Section 1 of the Constitution.

Subsequently in the light of this judgment, the Electoral Supervisory Commission applied to the Supreme Court for directions as to how to apply the provisions of paragraph 3 of the First Schedule to a prospective candidate who fails to declare on his nomination paper, which community he belongs to.

The Full Bench of the Supreme Court held as follows: pursuant to paragraph 3(1) of the First Schedule of the Constitution and the Regulations made thereunder, prospective candidates at a general election are under a legal obligation to declare on the nomination papers the communities to which they belong, failing which, their nomination papers will be held invalid by their respective Returning Officers - The Electoral Supervisory Commission v. The Honourable Attorney-General [2005 SCJ 252].

It is clear that the Full Bench has already made a pronouncement on the issue raised in these applications and the judgment of the Full Bench of the Supreme Court, is normally binding upon the present Court which by virtue of the doctrine of stare decisis, has no choice but to follow it.

The applicants have however contended that the decision of the Full Bench is no longer good law inasmuch as the Full Bench adopted the approach in the case of UDM v. Governor General and Ors [1990 MR 118] according to which, in order to determine the meaning of a democratic State in our Constitution, it is not necessary nor appropriate to travel outside the Constitution.

8 In that case the Court held: We have formed the opinion that, with respect to the other Judges of this Court who have been called upon to formulate such a definition for the purpose of section 1, the approach of Ramphul J, as explained in Lincoln & ors v. Governor General & ors [1974 MR 112], is the correct one. In short, this is that it is neither necessary nor appropriate to travel outside our supreme law for the purpose of discovering what the framers of our Constitution had in mind when they used the words democratic State, and still less to invoke certain conventions which underlie British constitutional law. What section 1 means is that our State is to be administered in accordance with the other provisions of the Constitution, which contain the essence of the democratic principles governing us.

However in the subsequent case of Police v. Khoyratty (supra), the Supreme Court adopted a different approach whilst analysing the constitutional powers of the Judiciary in the context of bail applications. The Court did not confine itself to the provisions of the Constitution but looked at the provisions obtaining in different jurisdictions and in its judgment held that Section 5 (3 A) of the Constitution infringed two other sections of the Constitutions namely Sections 1 and 7. The Privy Council commended this approach and maintained the judgment of the Supreme Court, Lord Rodger of Earlsferry making the following observations: Having regard, in particular to the specially entrenched status of section 1, in my view, it would be wrong to say that the concept of democratic State to be found there means nothing more than the sum of the provisions of the rest of the Constitution, whatever they may be at any given moment. Rather Section 1 contains a separate, substantial guarantee. On the other hand what matters is the concept of a democratic State as that term is used in Section 1 and not just generally. That said, the Constitution is not to be interpreted in a vacuum, without any regard to thinking in other countries sharing similar values.

9 The above mentioned comments made by Lord Rodger certainly show that the pronouncement of Ramphul J in Lincoln v Governor-General and ors [1974 MR 112] is a restrictive one and is no longer the correct approach to adopt in interpreting the Constitution and the remarks of Lord Rodger provide a guideline as to the correct approach to be taken henceforth in interpreting Section 1 of the Constitution.

It is the applicants contention that the relevant sections of the Constitution and in particular paragraph 3 (1) of the First Schedule providing that a prospective candidate shall declare his community, were not interpreted in the light of the above mentioned overriding principles, which should prevail in a true democratic State.

Whilst the Privy Council has undoubtedly given a different perspective as to the interpretation of a democratic State in the Constitution and the Courts have to stand guided by same, it cannot be said that the judgment of the Full Bench in the Electoral Supervisory Commission case no more holds good as a result of the wider approach laid down by the Judicial Committee in respect of the construction of the term democratic State. The Full Bench decision remains good law and is binding on courts of lesser jurisdiction. The judgment of the Full Bench dealt with the supplemental electoral process by means of the Best Loser System and situated the importance of the declaration of each candidates community in the electoral system, and is not affected in any significant manner by the new approach adopted by the Judicial Committee in construing the words democratic State in the context of its decision as to whether Section 5 (3 A) was contrary to Section 1 of the Constitution.

10

The following extract from the decision of the Full Bench may be appropriately reproduced at this stage: The declaration of community made by a prospective candidate at a general election is, as we have seen, at the heart of the Best Loser System enshrined in the First Schedule since the allocation of the eight additional seats is to ensure a fair and adequate representation of each of the four communities. Although an independent unreturned candidate has no claim to any one of the additional eight seats under the First Schedule, yet if he is elected, the declaration as to his community plays an important role in the determination of the eight additional seats. Indeed in order to determine as to which community a seat is to be allocated in turn, it is essential to ascertain the number of persons of that community who have been returned as successful candidates, irrespective of the party to which those persons belong as that number will be a component of the denominator by which the total number of persons comprising that community as per the 1972 census will be divided in order to ascertain the representation of that community in respect of each exercise for the purpose of allocating the additional seats. In the absence of the declaration of the community of a successful candidate, irrespective of whether he belongs to a party or not, the whole exercise will be stultified, thereby rendering nugatory the allocation of the eight additional seats The Electoral Supervisory Commission v. The Honourable AttorneyGeneral [2005 SCJ 252].

Turning to the present case it is the applicants contention that, bearing in mind the respective rights emphasised in the judgment of Balancy J on the one hand, and that of the Full Bench, on the other, this Court must carry out a balancing exercise. On the one hand, if on account of their failure to declare their community, a number of candidates are prohibited from presenting themselves as candidates to general elections, the proper functioning of democracy will be affected. On the other hand, the proper functioning of the Best Loser System would be

11 hindered by the refusal of certain candidates to declare their community. The Court has to make a choice between the disruption of democracy and the disruption of a supplemental electoral process. The paramount duty of the Court is to avoid disruption to democracy and it cannot take a decision which disrupts democracy in order to protect the Best Loser System.

I agree that the issues involve two distinct constitutional rights. On the one hand there is the right under Section 1 for any citizen who is qualified, under the provisions of the Constitution itself, to stand as a candidate in a democratic country, which right is fundamental in a democracy, and must be jealously preserved and on the other hand, there is under the First Schedule of the Constitution, the Best Loser System which is designed for the protection of minorities, which also enjoys a right to protection.

There appears to be a conflict between these two rights on this issue and the question that needs to be answered is which of these two rights should prevail. It is to be noted that whereas the right to stand as a candidate is to be found in Section 1 of the Constitution, the Best Loser System is found in the First Schedule of the Constitution.

In the case of Narrain Balancy J whilst being of the view that the Schedule should not, generally, be regarded as less authoritative than the body of the Constitution, nevertheless went on to find that the right to candidature to general elections was more fundamental in a democratic State than the right of minorities to protection under the Best Loser System.

The approach adopted both by the Supreme Court and the Privy Council in the case of Khoyratty as to the interpretation of Section 1, goes further. Both jurisdictions emphasised that Section 1 is the most authoritative provision of the Constitution and all provisions of the

12 Constitution must perforce comply with Section 1, failing which they will be declared void to the extent that they infringe Section 1. In the case of Khoyratty itself, Section 5 (3 A) of the Constitution in so far as regards drug offences, was found to be void since it infringes Sections 1 and 7 of the Constitution.

The paramount importance of Section 1 was emphasised by the Privy Council which observed that Section 1 is not a mere preamble. It is not simply a guide to interpretation. In this respect it is to be distinguished from many other constitutional provisions. It is of the first importance that the provision that Mauritius shall be .. a democratic State is an operative and binding provision. Its very subject matter and place at the very beginning of the

Constitution underlies its importance. And the Constitution provides that any law inconsistent with the Constitution is pro tanto void: Section 2.

The Privy Council also referred to the amendment made in 1991 to Section 47(3) of the Constitution (Act No. 48 of 1991) to make provision for a deep entrenchment of Sections 1 and 57 (2) such that Section 1 has since then an exceptional degree of entrenchment.

It is to be noted that, as was observed in the case of Parwez Carrimkhan v. Tin How Lew Chin & ors [2000 SCJ 264]: The body of the Constitution does not refer to communities. It would appear that the First Schedule comes as an addendum or as an afterthought to introduce the concept. Representations were made by minorities to secure their fair and adequate representation in the Assembly (see the Mauritius Constitutional Conference Report 1965 and an account of the setting up of the Best Loser System proposed in the Stonehouse Report in the case of Ex P. Electoral Supervisory Commission & Ors [1991 MR 166]).

13

Due regard being given to the above mentioned observations of the Privy Council in relation to Section 1, the inescapable conclusion is that the right to candidature in our democratic State which is a right under the first section of the Constitution and the importance of which has been highlighted by the Privy Council, should have precedence over the right to the allocation of best loser seats which is a protection afforded to minorities in the First Schedule. A right which seemingly has been enacted as an afterthought to secure fair and adequate representation of minorities in the Legislative Assembly, cannot take precedence over the deeply entrenched provision in Section 1, which perforce includes the right to stand as a candidate and which right is fundamental in a democratic society.

Disqualifying an otherwise qualified person from standing as candidate on the sole ground that he has failed to declare his community imposes an unreasonable and unjustifiable fetter to this fundamental right which right is at the very cornerstone of democracy and should be jealously guarded and preserved.

This view is in line with the decision of Balancy J in the case of Narrain (supra): The provision imposing the sanction of nullity of nomination for non declaration of community is tantamount to an unjustified curtailing of the citizens constitutional right to stand as a candidate for election as a member of Parliament at general elections.

Furthermore, the extent to which the exercise of the allocation of eight additional seats a supplementary and ancillary electoral process would be disrupted is, in my view, quite uncertain and debatable. In any event, we are here talking about some degree of disruption, the effect of which is, in my view, equally debatable. On the other hand, we are concerned with the

14 much more certain disruption of the main electoral process at the heart of the democratic system by preventing otherwise fully qualified candidates, duly nominated by equally qualified electors, from standing as candidates and potentially becoming the representatives of the people in accordance with the wish of the majority of the population. For these reasons, I would be inclined to concur with the conclusions reached by Balancy J in the case of Narrain (supra).

However for the purposes of this case, by virtue of the doctrine of precedent, I am bound by the decision of the Full Bench in the Electoral Supervisory Commission case. I have

accordingly, in line with that judgment, held that in the absence of a declaration as to the applicants community, the Returning Officers were entitled to reject the nomination paper and I have set aside the applications.

For reasons that must have become obvious by now, I have not ordered the applicants to pay any costs.

R. Mungly-Gulbul Judge 30 April 2010 ----For Applicants : Mr. M. Ahnee together with Mr. R. Stephen and Mr. A. Halkhoree, all of Counsel Mr. Attorney S. Mardemootoo Mrs. A. Narain, Assistant Solicitor General instructed by Chief State Attorney Sir H. Moollan, QC together with Mrs Mamode Ally and Mrs. Mohung, both of Counsel Mr. A. Rajah, Senior Attorney

For Respondents Nos. 1 and 3-23 : For Respondent No. 2 :