Dany Sylvie Marie and others v The Electoral Commissioner and others (Mauritius)

Where the Constitution of Mauritius makes a Supreme Court determination on nomination validity final and unappealable, that finality may exclude an application for Privy Council special leave by necessary intendment. Section 81(5) preserves, but does not itself confer, the Judicial Committee’s special-leave power. Although challenges to nomination decisions are civil matters, the constitutional finality scheme and the need for prompt election administration prevailed. Even assuming jurisdiction, special leave would have been confined to exceptional cases. A constitutional challenge could instead be brought through the available Mauritian procedures, with the local courts considering the issues first. The Board expressed no concluded view on the merits.

The applicants proposed to stand in the Mauritian general election but submitted nomination papers without declaring their communities. The returning officers rejected the nominations under regulation 12 of the National Assembly Elections Regulations. Applications under paragraph 4(4) of the First Schedule to the Constitution of Mauritius were refused by Mungly-Gulbul J on 26 April 2010, with reasons given on 30 April. The constitutional procedure made the determination unappealable.

The applicants sought special leave to appeal directly to the Privy Council. The issues were whether the Judicial Committee had jurisdiction to grant special leave, whether leave should be granted, and, if so, whether the appeals should succeed.

1. Disposition. The applications for special leave were refused. The Board, delivering judgment through Lord Clarke, held that the Judicial Committee had no jurisdiction to grant special leave from the Supreme Court’s determination under paragraph 4(4) of the First Schedule to the Constitution of Mauritius.
2. Civil matter and statutory power. Proceedings challenging returning officers’ decisions on the validity of nominations were a civil matter for section 81(5). The disciplinary context considered in Goinsamy Chinien v The Attorney General and The Mauritius Bar Association was materially different. Section 81(5) preserved any existing right to special leave; it did not itself confer or define the Judicial Committee’s jurisdiction. That jurisdiction was governed by the Judicial Committee Act 1833 and the Judicial Committee Act 1844. Domestic legislation could exclude the power expressly or by necessary intendment.
3. Constitutional finality. Section 81(3), paragraph 4(4) of the First Schedule and section 37(6) had to be read together. The express finality provision for invalid nominations, the corresponding finality provisions for community declarations and valid nominations, and the absence in paragraph 4(4) of a provision permitting later appeals indicated that special leave was excluded by necessary intendment. The scheme served the legitimate purpose of resolving electoral disputes within a tight timetable. The Board respectfully disagreed with the contrary view expressed in Narrain v Electoral Suprevisory Commission [2006] SCJ 214.
4. Alternative conclusion and merits. If jurisdiction had existed, special leave would nevertheless have been refused. Such intervention would be reserved for a special, even exceptional, case. The applicants had other procedures for challenging the constitutionality of regulation 12(5), and issues of major constitutional importance should ordinarily be considered first by the Mauritian courts, which were better placed to assess the country’s electoral history, policy and political context. The Board expressed no concluded view on the merits. The parties were directed to submit written costs applications within 28 days.

• Privy Council: The applications for special leave were refused in [2011] UKPC 45. The Board held that the Judicial Committee lacked jurisdiction and stated that, assuming jurisdiction, it would still have refused leave.
• Supreme Court of Mauritius: Mungly-Gulbul J refused the applications under paragraph 4(4) of the First Schedule on 26 April 2010 and gave reasons on 30 April 2010. The determination was subject to no appeal under the constitutional provision.