“Parliament has the power to pass laws as long as these laws do not offend any provisions of the Constitution”

Qs & As

The state of our democracy

* ‘Democracy cannot be gauged or assessed only by the regular holding of elections every five years’

By LEX

The question of what pillars and threads constitute and protect our democracy and the civil rights or freedoms that go with it, should not generally be the cause of agitation if they are properly guarded by a functional set of institutions and processes. But recent years have witnessed such mediatised encroachments that many questions are being raised both locally and, in the internet age, internationally. How far should we be concerned and can we reverse the trend are topics we have asked Lex to shed light upon.

* We seem to give more credence to failings or perceived failings in our country or the systems in place when these are singled out by Western media or ratings agencies. What more has the ‘Financial Times’ report on Mauritius, probably sponsored by the local authorities, informed us about the state of our democracy than what we already know?

It is not a question of what we know more. The present regime shouts on the rooftops that we are a viable democracy. It may try to mislead the population and its ardent supporters, but you cannot fool independent observers, either local or those from outside, who not only keep watch on all countries to monitor their track record with regard to democracy but also seek the views of local observers. At the end of the day, in the internet age,international observers have broader inputs and information about our democracy than what we might be aware of ourselves.

* If we go by definitions and the main features of a democracy, namely one in which would prevail a system for choosing and replacing the government through free and fair elections;active participation of the people, as citizens, in politics and civic life; protection of the human rights of all citizens; freedom of speech, expression and choice as well as various rights as enshrined in our Constitution, and the rule of law, are there good reasons to complain about the state of our democracy?

Democracy cannot be gauged or assessed only by the regular holding of elections every five years and having a parliament that is supposed to have been democratically elected. It is in the workings of the principles of democracy that one can infer whethera country is committed to democracy or not. Let’s consider only one example: our Parliament. Can we look up to it as a model of a working democratic parliament?

* If we could measure democracy on the basis of its expected outcomes, like for instance open public debate on major policies and legislations; and citizens’ right to information about the government and its functioning, what would be the actual performance of our democracy from these particular angles?

I am afraid we might be heading towards a system where democracy exists only on paper. We are not yet an open dictatorship, but we appear to be on the way tobecoming an autocratic State since the 2014 elections. Arbitrary arrests bya police force, the attempt to destroy the independence of the Office of the DPP, the appointment ofcronies that cannot deliver in strategic institutions… all of these do not speak well for the reputation of our country. And, we may add, these facts are equally known or closely watched by international media and observers.

* Our Constitution has established a democratic republic form of government. “Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius, ” states section 1 of our Constitution. Does this constitute the bedrock on which any legislation should be based and ultimately promulgated, and any piece of legislation or decision that goes contrary to the spirit of that Article can be challenged in Court, right?

Parliament has the power to pass laws as long as these laws do not offend any provisions of the constitution.For example, a few years ago the MMM-MSM government voted a law to deny bail to a certain category of suspected drug traffickers and terrorists. That was done thorough an amendment of section 5 of the Constitution that guarantees the freedom of individual. Both the Supreme Court and the Privy Council held that the amendment was unconstitutional as it went against the principle of democracy that dictates that it is for the judiciary, not the executive, to decide on the liberty of the individual.

* What institutions should at all cost remain and be seen to be independent to protect and promote our democratic regime?

 To start with, it should be the Parliament itself. Then we have the police force; the Independent Commission against Corruption (ICAC); the Office of the DPP; the Judiciary; the Bank of Mauritius and the Director of Audit. Up to now the Office of the DPP and the Director of Audit have remained ferociously independent.The Judiciary so far is perceived to be independent. But is the ICAC acting impartially? Is the Bark of Mauritius independent from the MOF or government? The question is that we collectively depend on the political class to clean up, stiffen and make our institutions more robustly independent and credible, will they walk the talk?

* Constitutions are said to define the various institutions of government; prescribe their composition, powers and functions; and regulate relations between them. What if amendments were to be brought to the Constitution that would upset the democratic scheme of things?

Whatever amendments are brought should comply with the notion of democracy in section 1 of the Constitution. The Supreme Court and the Privy Council have held time and time again that section 1 is not merely a preamble but a substantive provision. A number of provisions cannot be altered without a weighted majority of three quarters.Even then if the amendments offend or go against the notion of democracy they will be struck down.

* There have been instances when the constitutionality of certain legislation or amendments have been challenged in Court – at times successfully. There is therefore no reason to suggest that the independence of our judiciary has been undermined; it remains a bulwark for freedom and democracy and a force for justice, isn’t it?

Certainly. Judges have been bold enough over the years to strike down laws that offended against the Constitution. Recently Judges David Chan and Karuna Gunness-Balagheestruck down some provisions of the ICTA law before it was amended on the ground that they were unconstitutional.

* What about the protection of human rights and good governance?

The Constitution embodies fundamental rights in Chapter 2. There is also a provision that allows any citizen to go to the Supreme Court if he or she is of the view that his/her rights under the Constitution have been violated.

It’s all very nice to have all these rights embodied in an instrument, but if those who wield power like the government or the police have no respect for these rights what is the point of having them?

In an insidious way many rights are being eroded or not respected. The continuing pandemic regulations have further stretched those erosions and many may feel it is high time these were rolled back.

* Transparency International says its research has established a clear link between having a healthy democracy and successfully fighting public sector corruption. We have not reached that stage to date, isn’t it?

There is a perception that corruption is rife in the country. Whether this is true or not is another matter, but the perception is there and that is bad for a democracy. The question that cannot evade all political leaders and parties, is what do we propose to do about this unsavoury situation?

In a small island state with numerous lobbies, there are obvious difficulties and reconciliations needed to achieve a necessary consensus on the fundamentals and the over-riding principles, but that necessity, in the light of recent experiences, is now an imperative.

* What could constitute threats to our democracy?

I can do no better than to quote from an article that appeared in L’express in March this year where the author gave the following views thatanswer your question.

“Nepotism,award of contracts in atotally opaque way, getting hordes of police officers to arrest citizens on the mere complaint of oversusceptible politicians, abuse of the Statemedia, running Parliament as if it is a central committee of a political party, stifling the voice of the Opposition with the assistance of the Speaker, who is far from being objective and independent, attempt at removing the independence of the office of the Director of Public Prosecutions, filling institutions that are supposed to run in total independence with individuals who cannot deliver, making allegations in parliament against people who are not even members of the National Assembly, forcing journalists to reveal the source of their information, all these are being mentioned not as a criticism of anyone but as blunt facts that have tarnished our solid reputation as a democratic country and as a role model not only in Africa but in the rest of the world.”

Mauritius Times ePaper Friday 8 April 2022