“Any attempt to abolish the Best Loser system would amount to navigating in troubled waters”
Qs & As
Rezistans ek Alternativ v State of Mauritius
* ‘The Supreme Court cannot assume jurisdiction on a matter which is obsolete. It is not that the Court refused to delve into the issue’
The dismissal by the full bench of the Supreme Court of the Resistans ek Alternativ(REA) plea against the necessity to declare one’s community belonging to stand as election candidate in 2014 has led to some commentary. As laymen going through the judgment, one cannot fail to grasp the SC’s point that it could not be asked to rule upon a matter rendered obsolete by 2014 election regulations. Lex gives the legal perspective to the decision and any limited option that might be available to REA to challenge that SC ruling, in addition to providing his general view on the Best Loser System.
* The full bench of the Supreme Court (SC) has last week examined and ruled on the case lodged by Resistans ek Alternativ (REA) –“an exercise for constitutional relief”. The SC noted that “In an application for constitutional redress under section 83 of the Constitution, it is imperative for the aggrieved plaintiffs to state with precision the provision of the Constitution which has been, is or is likely to be contravened; and the nature of the relief sought as stipulated in rule 2(1)of the Supreme Court (Constitutional Relief) Rules”. What is your take on that statement?
Any person who files a case to complain about a breach of his constitutional rights has to specify clearly the rights and the provisions of the Constitution on which he is relying. Mere general averments relating to an alleged breach of a constitutional right will not suffice. This has been decided time and again by the Supreme Court.
* ReA in its prayer (26B) sought to challenge the “disqualification of any prospective candidate at a general election based on a non-compliance of Paragraph 3(1) of the First Schedule to the Constitution contravenes and/or is repugnant to section 1 and/or section 33 and/or section 34 of the Constitution”.Was this prayer couched in such broad terms that, as affirmed the SC, it enfeebled the case and would be asking the SC to replace the legislator?
Regulation 3(1) of the First Schedule to the Constitution provides: ‘(1) Every candidate for election at any general election of members of the Assembly shall declare in such manner as may be prescribed which community he belongs to, and that community shall be stated in a published notice of his nomination.’
Regulation 12(5) of the National Assembly Elections Regulations 1968, which provides for the disqualification of a prospective candidate at a general election based on non-compliance with paragraph 3(1) of the First Schedule to The Constitution, has been revoked by the National Assembly Elections Regulations 2014 which reads: ‘In the case of a general election, each candidate may, if he so wishes, make and subscribe on his Nomination Papera declaration as to which of the Hindu, Muslim, Sino-Mauritian or General Population community he belongs to, or he may elect not to make the declaration.’
In other words, a candidate has the choice to inscribe or to abstain from declaring his community on his Nomination Paper.
* The full bench of the SC further adds that most of the affirmations in the second amended plaint dated 16th May 2019 to support the REA prayer (26B) were related to 1968 election regulations, rendered obsolete in 2014 and could not take on board the new regulations which only came in force on 7th Oct 2019. Is it the gist of the Court’s reasoning that the plaint should have been properly amended and the prayer made more specific, and do you think it was justified?
Of course. The argument of the State is that the words “any disqualification of a prospective candidate at a general election” found at paragraph 26B of the plaintiffs’ second amended plaint, refer to an act and are couched in wide terms instead of referring to a specific provision of the law which allegedly contravenes any specific sections of the Constitution.
Further what the Court said was that it could not deal with the issue raised following an amendment as it was outdated, the plaintiffs claiming that their right to stand at the 2014 elections was breached. This, the Court pointed out, had become obsolete — “The plaintiffs did not deem it fit to readjust their second amended plaint by bringing in it the necessary amendments after regulation 12 of the National Assembly Elections Regulation 2014 was revoked on 7 October 2019 by the National Assembly Elections Regulations 2019.”
* The SC ruled that “the plaintiffs’ second amended plaint does not disclose any live issue which calls for a meaningful determination of the Supreme Court. Indeed, the facts averred in the second amended plaint have become obsolete and no longer stand…” and dismissed the REA plaint. Does it seem to you on balance a missed opportunity by REA’s legal team rather than an alleged unwillingness of the SC to delve into the issues?
The Supreme Court cannot assume jurisdiction on a matter which is obsolete. It is not that the Court refused to delve into the issue. The Court held the view that since a candidate has a choice to inscribe his community on the Nomination Paper and as there is no longer an obligation to do so, there was no live issue before it.
The Court properly dealt with that issue by stating:
“We wish to add that it is to the knowledge of the plaintiffs that regulations 12(4) and 12(5) of the National Assembly Elections Regulations 1968 have been revoked by the National Assembly Elections Regulations 2014 so that they no longer stand on our statute books. As shown by our case law the Court seized with a matter based on a repealed legislation is loath to interpret or pronounce itself on a repealed law. Similarly, there are no hypothetical questions which need to be answered for a visible practical purpose.” Read More… Become a Subscriber
Mauritius Times ePaper Friday 7 October 2022
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