“Mauritians need to think seriously about how to protect the Constitution from being altered easily and capriciously”

Interview: Milan Meetarbhan —

Mauritians as a whole have got democratic instincts in their DNA but politicians do not always get it

Milan Meetarbhan launched, this week, a book that he has written about the Constitution of Mauritius. He has drawn on his extensive experience as an academic, a law practitioner, an adviser to government, a regulator and a diplomat to comment on the emerging body of constitutional law in Mauritius. We have taken this opportunity to go over some salient aspects of the Constitution with him, in particular how it must evolve to meet the changing context of politics and political activism.

* ‘Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius.’ This is what Article 1 of our Constitution states. What more is required than the mere holding of elections every five years to make of the country a living democracy?

In the early years after independence, a rather narrow view was taken of the scope of Article 1, but the courts have now given a broader view of what Article 1 implies. In any case, democracy does not boil down to the mere holding of elections every five years. Even if it did, one would still have to ensure that the elections were free and fair as the mere holding of regular elections would not suffice.

Democracy is not a closed-ended concept. One cannot draw an exhaustive list of what would be democratic even if we can set out what would be the essential pre-requisites of a democratic State. The Courts can decide at any time if for instance a piece of legislation voted by Parliament is consistent with a democratic State.

I must add that in a democratic State, it is not enough to comply with the letter of constitutional provisions. The organs of government will also be expected to abide by a set of principles or basic features of democratic State. Constitutionalism is about values and norms which apply over and above the limits of the Constitution. In a democratic State, those who are in power cannot justify a decision which flouts all norms of decency, democracy or legitimacy by shielding behind a textual interpretation of the Constitution. We should not forget that in the second half of the 20th century, the authoritarian States of Eastern Europe often justified their acts on the basis that these were consistent with the Constitution. An act which may not be strictly in breach of specific procedural requirements under the Constitution may still be in breach of democratic norms.

* One could presume that all those who were actively involved in the drafting of our present constitution, more than 50 years ago, were guided by the “projet de société” they thought would carry Mauritius forward in the decades ahead. What does your reading of our Constitution tell you about the guiding principles that laid the foundations of Mauritian society, and do you think they have served us well?

I would say that our constitutional regime has served us relatively well to the extent that we have had fairly stable and effective governance and Rule of Law. I am not sure however that it would be historically accurate to state that all those who were involved in the constitutional talks in the 1960s were actually guided by a “projet de société” that would carry Mauritius forward. The Constitution that was granted to Mauritius by the colonial power was largely based on what has been termed the Whitehall model used for a number of newly independent States of the Commonwealth, particularly small island nations. There are however various provisions which are unique to Mauritius, of which the powers given to the Governor General to ensure that some decisions were not taken by the political Executive and the electoral system are the main examples. Given the strong opposition to independence within the country and the major concerns about majority rule the Constitution provided safeguards to allay these concerns.

* It could be that those guiding principles are fundamentally still valid. Do we therefore review the Constitution because politicians are not having their way or is there a case today for a full-fledged review of our Constitution?

A Constitution is not immutable. However that does not mean that it can be changed anytime on an ad hoc basis, very often with little or no consultations and at short notice, as has been done on quite a few occasions.

Whilst a Constitution may be amended to remedy a defect or omission or to incorporate new trends for instance in the field of human rights, it is important that the process and the procedures for revision should be adequate and reasonable in a democratic State.

I would submit that after half a century of constitutional practice, we are now in a position to take a dispassionate view of how the Constitution has worked or not worked on the basis of empirical evidence over a period of fifty years. But a review should be done by an independent commission and the proposals for reform should be approved by the people at large.

* Are some of the supposed flaws in the constitution to be attributed to the constitution per se or to the men and women put in the saddle?

It could be both. Like with any piece of legislation it is not possible to foresee all likely scenarios at the time of drafting. There may also be new thinking on certain issues, namely those relating to protection of fundamental rights, which require an amendment of the Constitution for the latter to be in tune with worldwide trends.

On the other hand, there are situations where the provisions of the Constitution may not be flawed but there is for instance an abuse of the constituent powers of the legislature for partisan ends. When the Executive uses its majority in Parliament to rush through constitutional amendments to ensure that the Constitution will be made consistent with the legislation which the Executive proposes to introduce, then the fault may lie with the Constitution itself which enables constitutional amendments by a three quarters majority of a unicameral Parliament but it may also lie with the values, or lack thereof, of the Executive at any point in time which has no qualms about getting such an amendment adopted without consultation or sufficient prior notice to suit its own partisan agenda.

* Have the more than 16 or so constitutional amendments served the country well or have they distorted the spirit of the Constitution?

There have indeed been many amendments to the Constitution since 1968. These have occurred mainly when the ruling party or alliance had the required parliamentary majority to adopt these amendments. It is no coincidence that the three waves of constitutional amendments have taken place in 1982-83, 1991-92 and 2001-2003. During each of these three periods the ruling alliance had the required majority to amend the Constitution without the support of the Opposition.

Some of these amendments, like the one providing for sex to be one of the grounds on which discrimination is not allowed, or the amendment setting up of a Public Bodies Appeal Tribunal, have been good for the country. But other piecemeal amendments have not necessarily served the interests of the country.

* If we go by past experience – one, the constitutional amendment just after 1982 which henceforth facilitates the sacking of civil servants “in the public interest” and, second, the proposal in favour of a Second Republic in 2014 – politicians alone cannot be entrusted with the task of revisiting our Constitution. Do we need a Constitutional Review Commission for that major undertaking?

The proposal in favour of a Second Republic in 2014 was made by politicians but though these politicians had the required majority in Parliament to adopt these amendments they did not do so. They decided that their proposals will be submitted to the people and that they will adopt these amendments if they have a mandate from the people . However as far as I can remember the Government did not have a mandate to adopt the 1982 amendment which facilitated the sacking of civil servants.

Yes, as I have said already, we do need an independent commission which would include constitutional lawyers, political scientists and other independent minded persons who can on the occasion of the 50th anniversary of our independence, review the way our Constitution has worked or not worked well enough over the last 50 years and recommend appropriate measures. This Commission should also consider reforms required to perfect, update and modernise our constitutional framework.

* A proper review of the constitution along democratic lines like the one undertaken for the review of the Kenyan constitution may be time consuming and expensive and will involve extensive consultation at the level of every constituency, with all stakeholders and organisations if we really want it to be democratic – not elitist like the present one. Is Mauritius ready for a democratic constitution?

You are right that a review exercise will require extensive consultations. The constitutional talks in the 60s involved essentially political parties. Today we would expect and demand that all citizens, NGOs and various institutions be also involved. It will take time but I am not sure that it will be as expensive as you suggest. The most important thing is that the exercise be carried out by independent and respected persons who can come up with recommendations that will update our Constitution. The 50th anniversary of Independence and of the coming into force of the present Constitution is the ideal time to start this exercise. However the mode of appointment of members of the Review Commission will have to be determined first.

You ask whether Mauritius is ready for a democratic Constitution. I strongly believe that Mauritians as a whole have got democratic instincts in their DNA but politicians do not always get it. Updating and modernising our Constitution to strengthen the democratic fabric of our society to promote integrity, accountability, institutional autonomy, right of redress for citizens are matters on which there will be a national consensus.

* We have seen how the calls for amending our electoral system with a view to introducing a dose of Proportional Representation and doing away with Best Losers have met with opposition from different quarters. One could therefore presume that any major constitutional review might constitute a perilous and long-drawn exercise, isn’t it?

I would expect the Review Commission to start the exercise without any preconceived ideas as to what should be in the revised Constitution. The Terms of Reference of the Commission cannot be like those of the Sachs Commission which was asked to make recommendations on electoral reform without changing what exists already but only adding on to it.

The Commission will have to keep an open mind and listen to all stakeholders and seek to achieve a national consensus bearing in mind the fact that Mauritius cannot be left behind in the global effort to improve and enhance protection of fundamental rights, access to justice, accountable institutions, integrity in government and so on.

* If one of the fundamental guiding principles of our Constitution was to ensure the adherence to values and respect for such principles as the rule of law, freedom of association, etc, all of which have ensured the harmony and relative peace that Mauritius has known during the past 50 years, what else would be required to cope with the fast-evolving society unfolding before us and likely to take shape in the decades ahead?

It is true that our constitutional regime has facilitated relatively stable governance over the years. But we have also had institutions functioning in a more democratic manner or in a less democratic manner depending on the individuals that head these institutions. This should not be the case. It happens because these individuals cannot always be held accountable. In spite of the clear provisions of the Constitution, a Prime Minister can repeatedly state that he has given instructions to the Commissioner of Police with respect to operational matters and the PM is not held accountable for this flagrant breach of the Constitution.

Our electoral system has enabled parliamentary majorities elected with only about 50% of the popular vote to hold over 75% of seats in the National Assembly and amend the Constitution at any time as they please. Our electoral system must not only ensure greater pluralism but must also ensure that a bare majority in the popular vote does not translate into more than enough seats to amend the Constitution. The nation needs to think seriously about how to protect the Constitution from being altered so easily and so capriciously.

On the other hand, the National Assembly cannot be a rubberstamp for the Executive which controls a majority of parliamentary seats. A revised Constitution must revisit the powers and role of MPs.

* How does the common man protect himself – his interest and dignity – in the face of insolent might that may be exercised by investigative authorities at the behest of vindictive political masters of the day? Does the protection already provided in the Constitution need to be enhanced?

Recent events have demonstrated how whilst a constitution remains intact, a change in the political personnel can in effect alter the way our democracy works. The citizen is often left without recourse as the rule regarding judicial review of administrative action or civil claims for abuses of power often make it very difficult to sanction abuses of power. In addition the rules governing locus standi, i.e. the right to claim redress against alleged breaches of the Constitution are rather restrictive.

We need to review our Bill of Rights to ensure protection of rights which were probably not yet part of the general normative framework of the 1960s. The new rights must include more positive rights as opposed to the negative rights provided for at present, and must include social and economic rights not provided for at present. In addition we must also ensure that citizens’ right of recourse to the Supreme Court for constitutional redress are broader than what they are presently.

* Would you say institutions like the Ombudsman, the PSC, the Human Rights Commission, the Electoral Commission have lived up to the expectations of the framers of the constitution or the spirit in which they have been created?

Of the institutions you mention, one – the Human Rights Commission – is not a creature of the Constitution. The others were not only set up under the Constitution but there are also constitutional safeguards protecting the independence of the Ombudsman and of members of the Commissions who are given security of tenure. However the amendments to the Constitution made in 1982 enable some persons who had security of tenure to be removed after a general election. This is a fundamental change in the constitutional position of these public offices and impacts on the conduct of the holders of these offices.

As far as the Ombudsman is concerned, I am not sure that this institution has lived up to the expectations of those who demanded during the constitutional talks in the 1960s that such an institution should be created. We will certainly have to review the powers of the Ombudsman and the present restrictions on such powers during a review exercise.

* In recent times, the need for State financing of political parties, a Freedom of Information Act, the limitation of prime ministerial/ministerial mandates, etc, have been called for. Any such legislation contains both its pros and cons. It requires political will to introduce such legislations into the Mauritian statute books. Do you see that forthcoming any time soon?

Indeed, introducing such legislation will require political will. I am not sure that the political will to do so currently exists. The Government announced in its manifesto that it will enhance the right of the people to have a say through referendums. But when asked about introducing legislation to fulfill this electoral promise the Prime Minister explained why a referendum is not necessary.

On the issue of term limits for Prime Ministers, I must say that this normally exists for Presidents and not for Prime Ministers. This does not mean that it cannot be done for Prime Ministers but it is more difficult to do so in a parliamentary system as opposed to a presidential system. In a Parliamentary system voters do not cast a vote for a Prime Minister but for an MP who may be appointed as PM if he commands the support of a majority in Parliament. This will complicate the application of any term limits.

* The First Past The Post produces the governments that go on to govern the country usually during five year-mandates, and it could happen that we might find ourselves saddled with a democratic dictatorship running the country and helplessly having to wait for the next election to change things – the more so when the checks and balances in the system are unable to function properly. Can this be changed?

In strict constitutional terms, a Government can be removed if the Prime Minister loses a motion of confidence in the National Assembly. If he loses the motion he must either resign or call for new elections. In some circumstances the President may not allow the dissolution of the Assembly and call on some other Member who has the support of a majority in the Assembly to form a new government.

Some countries have provided for a right of recall of Members of Parliament if this is supported by a certain number of electors. We do not have any such provision in our Constitution.

* Would you argue in favour of a sharing of powers between the Prime Minister and the President of the Republic with the latter nominated according to present constitutional dispositions/provisions, that is by Parliament and not elected by universal suffrage?

If what we want as a nation is that powers should not be concentrated in any one person or institution then we have to decide whether we want to keep the present parliamentary system or we want one where there is sharing and/or devolution of power. Even if there are no changes, the present constitutional regime already provides that there are some important powers of appointment, of dissolution of the Assembly, etc., which can be exercised by the President. We cannot have important powers in the hands of a President (initially these powers were conferred on the Governor General) who does not have a mandate from the people whereas the Prime Minister does (even if the current Prime Minister did not have one and has not sought such a mandate).

The President is formally elected by the National Assembly but only the Prime Minister can nominate a candidate and there is no debate on the PM’s motion. In effect the President is a nominee of the PM, as was the Governor General. Either we decide as a nation that we want only a figurehead President who will, like De Gaulle said, only inaugurer les chrysanthèmes, or we have one who exercises certain powers in a non-partisan and non-political manner, which guarantees independence of certain institutions vis-a-vis the political Executive. If this is what we want and I repeat that this is already to a large extent what the existing Constitution theoretically provides, then we must review the mode of appointment of the President so that he has proper legitimacy.

I proposed in 1991 at a public debate in Reduit which was chaired by late Madun Gujadhur and with Paul Berenger, then Minister of Foreign Affairs as one of the panelists, that we should consider electing a President by universal suffrage. I am aware of the serious reservations expressed by some independent observers but I still believe that the spirit of the 1968 Constitution which provided for what Prof De Smith called unique powers given to the Governor General may still be valid today. But we cannot accept today what might have been acceptable in the 1960s. Today if a President is to exercise certain powers he must have legitimacy which he can only acquire through wider suffrage and which he does not have as a nominee of the Prime Minister.

* We have been coming across different instances where there is a suspicion of political pressure or sectional interests taking the upper hand over the general (public) interest with heads of departments finding it more convenient and safer to toe the politician’s line than to offer any resistance. The question then is who decides what’s the public interest and how to ensure that it prevails over other considerations?

In the very difficult years immediately following Independence, the country was privileged to have not only enlightened political leadership but also accomplished bureaucrats. The extreme politicization of the public sector came some fifteen years later. There is no doubt that there are brilliant and competent people in the civil service and the parastatals today but the political leadership is weaker, many senior cadres have been appointed in accordance with criteria other than merit. The fact that over the last two years a number of public officials, sometimes retired public officials, have had their reputations tarnished by unwarranted criminal investigations, has instilled a new climate of fear in the public sector. This weakens the bureaucracy further as many are loathe to take decisions or be party to decision-making and thus expose themselves to the risk of being drawn into political witch-hunting.

Empowered civil servants are more likely to think of the national interest than those operating in a highly politicised ecosystem, and who may be caught in the crossfire of political vendettas.

 

  • Published in print edition on 25 August 2017

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