Checkmate

The country and the sanctity of our Constitution require that more democrats and citizens take a stand and add their voice whenever the fundamental anchors of our democracy are sapped

L’Alliance Lepep undertook in its election manifesto under the heading ‘Gouverner pour le peuple avec le peuple’ to establish a ‘contrat de confiance avec la population en douze commandements’. The 9th commandment decreed that ‘Il y aura des référendums obligatoires pour des questions cruciales concernant L’Etat.’ The term commandment used bestows a sacred commitment to this undertaking and the other commitments made under the twelve commandments. The explicit words ‘obligatoires’ and ‘questions cruciales’ add weight to the unequivocal commitment taken vis-à-vis the people.The massive victory of more than three quarters majority given by the people to L’Alliance Lepep at the December 2014 general elections was certainly not a licence for uncalled for and unwarranted tinkering with the Constitution, the supreme law of the country.

The proposed amendment to the Constitution aimed at basically interfering with the independence of the Judiciary and the absolute independence of the Director of Public Prosecutions (DPP) enshrined in the Constitution, is certainly a ‘question cruciale concernant L’Etat’. The independence of the DPP in the Mauritian Constitution is affirmed in section 72 (6) which unequivocally stipulates that ‘In the exercise of his powers conferred to him by this section, the Director of Prosecutions shall not be subject to the direction or control of any other person or authority’. The sacrosanct principle of separation of powers between the Executive and the Judiciary is cast in stone in our Constitution. This cardinal principle which anchors our democracy is a fundamental cornerstone of all the best democracies in the world. It cannot be tinkered with by the Executive.

It is comforting to note that this insidious attack on one of the central principles of our democracy, as we know it from its conception at the time of independence, has been thwarted by the exit of the PMSD from government. As a consequence, the government no longer holds the three quarters majority necessarily required to have the constitutional amendment voted in the National Assembly. The wind has been taken off the sails on presumably what was thought to be a deftly concocted government stratagem. This miscalculated gambit have been hobbled in its headlong race and been simply checkmated. It is consequently in limbo and has now been deferred to the resumption of the National Assembly after the December break on 21 March 2017.

The eminent

The precipitated and fast track tinkering with our Constitution raises a series of fundamental questions which underpin the foundations and standing of our democracy in the galaxy of the best democracies in the world. The first and foremost issue relates to the Constitution. The Constitution is the supreme law of every country. It is in every democratic country couched with utmost care by eminent constitutional jurists in a manner that reflects the country’s ethos and is inspired by the noblest democratic philosophy and principles. It took three years to draft the US Constitution.

Similarly, the task of preparing a new Indian Constitution was entrusted to the Constituent Assembly representing India in all its diversity. In August 1947, a drafting Committee chaired by Dr Bhimrao Ramji Ambedkar, the internationally renowned constitutional jurist widely considered as the architect of the Indian Constitution, was appointed. After nearly three years of due process, debates and more than 2000 amendments to the draft, the new Constitution of India, the longest written Constitution of any sovereign country in the world, came into force on 26 January 1950 and India became a sovereign democratic Republic.

A Constitution cannot therefore, as is objectionably the case in the country, be the object of frequent and ad hoc amendments of every kind contrived at the drop of a hat to pander to the rabid knee jerk reactions and narrow objectives of those in power. All crucial matters of national importance and in particular those relating to the Constitution in a democracy cannot be approved without the obligatory due process of seeking the approval of the people, the ultimate arbiter of all such matters, by referendum. The Brexit vote and the defeat of the Italian government earlier this month determined by referendum demonstrate the importance of obtaining the green light of the people on such important matters as material amendments to the Constitution.

The dilettante

L’Alliance Lepep must also remember that that it is for this very reason that the Labour-MMM alliance, which proposed profound changes to the Constitution tailored to suit their power sharing arrangements and their end-of-career ambitions, was routed by an irate vox populi at the polls. Have the heady trappings of power blinded them to the inherent risks of such contentious initiatives prevalent in the worst banana republics?

Members of the National Assembly are elected by the electorate to serve the interests of the country and the people. They are bound by a contract of trust with the people. They should know that tinkering with the Constitution without the formal approval of the people through a referendum is a red line. They are therefore expected to exercise their independent and best judgement on all matters especially those regarding the Constitution and the public interest instead of unquestionably kowtowing to the diktats of party line and the government.

Through his stance on the Prosecution Commission Bill and the related amendment to the Constitution, the leader of the PMSD has shown that he is a better democrat than the government and the leader of the MMM. As highlighted by the Prime Minister in reply to a parliamentary question last week, the latter had explored a similar initiative in respect of the powers of the DPP in 2003. He also proclaimed last week that he was open to discussion on the issue and added true to form that we should examine and seek inspiration from the provisions of the Constitutions of other countries. Far too often, the same high priests of constitutional reforms have been trigger happy to tinker with our Constitution to change the goal post or bend the rules of the game. The haste with which such a game changing amendment to the Constitution was rushed to the Assembly after its examination by a Ministerial Committee some ten days before is disconcerting. All this is symptomatic of a fundamentally undemocratic mindset. Some political parties seem by virtue of their ideological origins, political culture and mindset more inclined to tinker with our Constitution at the drop of a hat. This is simply not on.

The Constitution of a country is a serious matter. It cannot be undermined to prevent the Judiciary from operating truly independently or to settle political scores. Special legal minds of seasoned constitutional jurists have been harnessed to write the constitution of the most important democracies of the world. The Constitution cannot be tinkered with by the dilettante or through an exercise of collage and copy-paste of selected excerpts from dubious constitutional models from all and sundry.

Damning charge sheet

The Director of Public Prosecutions is a post protected by the Constitution. It would be unseemly to mix up the protected post of the DPP with its incumbents chosen by the Judicial and Legal Service Commission. It is also unbecoming to target and pillory some through narrow partisan considerations. The draft Prosecution Commission Bill is a self-righteous document which reads like a damning charge sheet. It has such flabbergasting language as the averment that Commissioners of the Prosecution Commission who are to keep a tight oversight over the DPP ‘will have nothing to gain by ingratiating themselves’ or the disconcerting proposal (presumably to corner all options) that in the eventuality that the Judicial and Legal Service Commission does not advise of any vacancy in the composition of the Prosecution Commission within 90 days, the appointment of the Commissioners shall be made by an Appointments Committee consisting of the President, as Chairperson, and the Prime Minister and Leader of Opposition, as members. Despite the loud rhetoric about the Executive not being involved, all three persons are members of the Executive.

The DPP has to ground his decisions on the basis of the findings and the sum of evidence of the inquiries or inquests carried out. It is therefore vital that the quality of inquiries, investigations and the gathering of proof and evidence be beefed up through inter alia the induction of a system of ‘juge d’instruction’ to head all judicial inquiries in the country. Justice must be seen to be done through a much more efficient, swift and rigorous investigative machinery. It would also be judicious for the DPP to explain whenever possible the rationale of his decisions in a spirit of transparency and consensus.

The government has been checkmated. It is for the Judiciary to sort out internally any issues that crop up through dialogue and the help of expert advice in the field and the counsel of, for example, the Law Lords. All initiatives in this respect must come in-house from the Judiciary and not the Executive. The country and the sanctity of our Constitution require that more democrats and citizens take a stand and add their voice whenever the fundamental anchors of our democracy are sapped by those who want to repeatedly change the goal post or hustle the Constitution.

Mrinal Roy

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