* ‘Any event can be invoked as a public emergency. It may not be only social unrest or a political turmoil. It can be an emergency caused by an economic crisis or based on threats to national security’
Lex is invited to share his legal insight into various matters related to the holding of general or local municipal elections. Namely the unfettered powers granted to the PM under the Westminster system for fixing the date of general elections at the time of his chosing within the five-year mandate and whether this should be checked. There are also questions regarding the ease with which municipal elections, last held in 2015 and postponed in 2020 due to the pandemic, can be further postponed under the guise of a pandemic or any unspecified public emergency.
* On 7 May 2021 Cabinet took the decision to introduce the Local Government (Amendment) Bill into the National Assembly with a view to extending “the life of 6 years of the entire Municipal City Council and Municipal Town Councils, or entire Village Councils, by not more than one year at a time, provided that the life of the Councils shall not be extended for more than 2 years”. Would it be correct to conclude that the government would be bound, on the basis of that amendment, to hold the next municipal councils elections, last held in 2015, this year?
It would be possible to extend the life of a municipal council indefinitely under the Local Government Act. When the law was amended in June 2021, the object of the Local Government (Amendment) Bill read as follows: ‘The object of this Bill is to amend the Local Government Act so as to provide that, at any time, when – (a) a period of public emergency is in force in Mauritius; and (b) 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, the President, acting in accordance with the advice of the Prime Minister, shall, by Proclamation, extend, during such periods, from time to time the life of 6 years of the entire Municipal City Council and Municipal Town Councils, or entire Village Councils, by not more than one year at a time, provided that the life of the Councils shall not be extended for more than 2 years.’
It will be noticed that the justification for the extension of the life of municipal and village councils was a public emergency or an epidemic. Even if there may not be an epidemic, the government might still fall back on public emergency situations to extend the life of these councils again. Any event can be invoked as a public emergency. It may not be only social unrest or a political turmoil. It can be an emergency caused by an economic crisis or based on threats to national security.
* What if the government were to seek to circumvent that legal obligation with a view to extending further the life of the municipal councils? Can it possibly do that and, if so, is there any way this could be prevented?
Not really. The Local Government Act can be amended by a simple majority and does not require a weighted majority of three quarters or two thirds of the votes in parliament. Those who want to challenge any further amendment may invoke the anti-democratic nature of any further amendment. However, this would be very difficult to establish.
* In South Africa efforts were under way to postpone local government elections, set for October 2021 as per the current constitutional requirement that such elections be held every five years, because of the Covid-19 pandemic. But the application by the South African Electoral Commission for postponement was dismissed by the Constitutional Court, which ordered that the polls must go ahead. What lessons should we draw from South Africa in that regard?
We cannot know as nobody has to date challenged the extension of the life of the municipal councils.
In the end, to adopt the reasoning of the South Africa Constitutional Court, the question that must be asked is whether elections would be free and fair if they were held when due. If the answer is yes, then that is the end of the matter. If the answer is no, then the question is whether the elections should have taken place take place despite the Covid-19 risk,
* Even if one of the defining characteristics of a democracy is that it holds regular, periodic elections – a requirement enshrined into Article 21(3) of the Universal Declaration of Human Rights (UN General Assembly 1948) -, between February 21 and August 18, 2020, elections in at least 70 countries and territories across the globe had been postponed. Yet during the same time period, plans for national or subnational elections in at least 54 countries continued (International IDEA 2020a). Would you say therefore that once an election has been scheduled, it should take place come what may?
That should be the rule. Elections can only be postponed in exceptional circumstances. Only extreme situations can give rise to exceptional circumstances. Now that restrictions have been lifted and the wearing of masks is not compulsory what would prevent the government from holding the local elections? The fear of a massive defeat looming ahead? There is no other justification.
* The constitutional amendments of 1982 have made the holding of general elections every five years obligatory. There is no such obligation as regards municipal and village councils elections. What would explain that omission by the then MMM-PSM government?
From its creation the MMM led by Sir Anerood Jugnauth led a ferocious campaign against the postponement of general elections that were due in 1972 to another additional five years. The MMM argued that this was unconstitutional though the vote was a weighted one of three quarters. A challenge was made in the Supreme Court in 1983 and the Court held as long as the amendment to the Constitution was done according to the procedure laid down in the Constitution for amending any of its provisions, the amendment to postpone the general elections was legal. The Court did not venture to make any pronouncement on the political aspect of the amendment.
* Besides the issues of the dissolution of Parliament, the holding of snap elections or the postponement of municipal and village councils elections, there is also the issue of the PM’s prerogative as regards the timing of elections generally. There is a case for review here as well, isn’t it?
One of the favourite examination questions in Constitutional papers is: If you have to choose between being the Prime Minister of Great Britain and the President of the United States, which one would choose?
One of the main reasons why many students would choose the UK prime ministership is because he holds the prerogative for the timing of elections. It might not be democratic strictly speaking, but this is how it works. It is a powerful political weapon in the hands of a Prime Minister in the Westminster system. In the US, an election for president of the United States happens every four years on the first Tuesday after the first Monday in November, and the President can serve only two terms. There is no such restriction on the number of terms a British Prime Minister can serve.
Given this power of the Prime Minister in the Westminster model, who would want to give it up?
The sachs Commission proposed the following: ‘We feel that in order to provide a level playing field to all the political parties it should be the Electoral Supervisory Commission in consultation with the Electoral Commissioner which should be in a position to activate the electoral machinery for the holding of general elections or by-elections. The date of the elections should therefore be fixed by the Electoral Supervisory Commission in consultation with the Electoral Commissioner. No other authority should have a role in this regard.’
This proposal can only work if we have really independent institutions in place. Is that the case today, especially following the last general elections?
* The UK parliament has paved the way for fixed terms with the introduction of the Fixed Term Parliament (FTP) Act 2011, which introduces the element of certainty in the electoral process, and it’s Parliament, not the Prime minister, that may call for an early election on the strength of a two-third majority vote. Furthermore the Electoral Commission has been empowered to start monitoring electoral expenses of political parties and candidates as from the 55th month from the date the last general elections. What’s your take on that?
The amendment restricts the power of the Prime Minister to call an election before the expiry of the life of parliament. But if the Prime Minister has the required majority he can still go for an early election and there is no doubt that the Opposition would vote for such a law.
* In France, where there is some form of state refund of electoral campaigns, there is a credible mechanism to vet those declared expenses before any refund is entertained. That provision has landed former President Sarkozy and his party into financial trouble. Should we consider some form of state funding with proper safeguards and credible, independent vetting of expenses?
The monitoring of electoral expenses is a mess in Mauritius. It a system that institutionalizes lies and fraud. Public perception here is that the powers that be and those who should audit election expenses are passively condoning such malpractices.
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