Revisiting the Foundation: Mauritius’ Constitution in the 21st Century

Long-term prime ministers risk building empires, as the previous government’s last decade showed

By Lex

The Mauritian Constitution, adopted in 1968, has served as the bedrock of the nation’s governance for over five decades. However, as society evolves, technology advances, and global norms shift, the question arises: is it time for a comprehensive re-evaluation? This analysis delves into the critical aspects of Mauritius’ constitutional landscape, examining the need for reform, the lessons from international examples, the challenges posed by technological advancements, and the ongoing debates surrounding key political and institutional structures. Ultimately, we explore whether Mauritius is prepared to forge a constitutional framework fit for the 21st century.

* Would you say that our Constitution, adopted at Independence in 1968, has effectively served the country and its people? And 57 years later, is it time for acomprehensive overhaul rather than continuing with piecemeal amendments that cater to specific political agendas?

A Constitution is not a static instrument. When drafted, the founding fathers incorporated what they deemed the best options for the country at that time. However, as time progresses, loopholes emerge, new issues arise, people’s needs evolve, and institutions may deviate from their intended functions. Therefore, a Constitution requires periodic review.

In Mauritius, numerous amendments have either solidified certain rights, such as the near-impossibility of postponing general elections, or created opportunities for abuse by concentrating excessive power in the hands of an individual.

After 57 years, a comprehensive review of the Constitution is overdue. The government, as stated by Attorney General Gavin Glover, has expressed a desire to undertake this task. The crucial factor is who will be responsible for the study and implementation of constitutional amendments.

* It is said that Kenya’s constitutional revisions serve as a successful example that could provide valuable lessons for Mauritius, as they offer stronger protections for rights compared to many other African countries. What are your thoughts on this?

Every country has a constitution designed for its own unique situation. Professor De Smith played a key role in creating the 1968 constitution. He taught many of our political leaders, like Sir Satcam Boolell and Sir Veerasamy Ringadoo, at the London School of Economics, where they studied law.

You can’t just take one country’s constitution and expect it to work perfectly for another. It’s better to look at different constitutions and pick out the best ideas. Simply copying and pasting would be a most dangerous exercise.

* Are there specific areas in our Constitution that are now outdated or in need of revision to better align with contemporary values and aspirations — for instance, the recognition of same-sex marriage and the protection of LGBT rights?

Mauritius is a signatory to several international conventions on human and economic rights, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC).

Many of the rights enshrined in these conventions are not explicitly reflected in the Mauritian Constitution. A study should be conducted to explore how these rights can be incorporated. For instance, the right to privacy is not explicitly stated. Furthermore, the legal framework regarding discrimination is limited in scope. While the rights of women and children are protected through various legislations, they are not constitutionally entrenched.

Prior to October 2023, Section 250 of the Criminal Code criminalized sodomy. Following a Supreme Court ruling, this law was repealed, effectively decriminalizing same-sex sexual activity. The question of whether this right should be explicitly included in the Constitution is a sensitive matter that could spark religious debate.

* How do global trends and technological advancements — such as AI, data analytics, and the influence of digital platforms on election outcomes — necessitate a reevaluation of the Mauritian Constitution?

Technological advancements, including artificial intelligence and data collection, undeniably encroach upon individual privacy without informed consent, a concern currently lacking constitutional safeguards. The ‘Moustass Leaks’ during the last electoral campaign serve as a prominent example.

The manner in which these issues should be addressed within the Constitution requires meticulous consideration. Existing rights, such as freedom of expression and its inherent limitations, must be upheld. Conversely, the potential for abuse created by social media platforms necessitates regulation, and individuals should have access to swift redress mechanisms. These are complex matters demanding careful deliberation.

* Key constitutional issues debated in recent years include the abolition of the Best Loser system, the requirement to declare one’s community for electoral purposes, electoral reforms favouring proportional representation, concerns over potential instability from such changes, the concentration of power in the Prime Minister’s office, and proposals for term limits. Addressing these challenges is a major undertaking. Is Mauritius mature enough to resolve them effectively?

The Best Loser system was implemented to address concerns among minority groups, who feared political marginalization by the Hindu majority following independence. Has this system achieved its intended purpose? Can a member of Parliament who belongs to the so-called minority groups claim he can be elected only with only the votes of his own community. This is sheer nonsense. It is debatable whether a Member of Parliament from a minority community can legitimately claim to be elected solely by the votes of their own community. To suggest such a notion is inaccurate. It is time to reconsider the necessity of the Best Loser system if the goal is to foster a sense of national unity.

A prime minister should be subject to term limits, ideally not exceeding three terms, regardless of individual term length. When a prime minister remains in power for many years, they may be tempted to build their own empire with the help of their stooges. This can lead to corruption and favouritism, which harms good governance. The last ten years of the previous government is a telling example.

* The framers of the 1968 Constitution could not have foreseen a scenario where investigative agencies and quasi-judicial institutions would be weaponised to intimidate political opponents as we have witnessed during the past 10 years. Does this mean there are no safeguards in place to prevent or counter such abuses?

A Constitution cannot anticipate all potential situations. When the framers drafted the Constitution, they expected that those appointed to head certain key institutions, such as the position of Commissioner of Police, would uphold their duties impartially. Unfortunately, this expectation has not been met.

Most institutions, with the exception of the Office of the Director of Public Prosecutions and the judiciary, are subject to political influence. Once appointed, the heads of these institutions often feel obligated to their political patrons. A mechanism should be incorporated into the Constitution to facilitate the removal of those who fail to perform their duties effectively. The defunct Independent Commission Against Corruption (ICAC) serves as a shameful example.

* How effective has the judiciary been in curbing Executive overreach? Many perceive that, unlike the Indian Supreme Court’s proactive stance in defending fundamental rights, the Mauritian judiciary has been less assertive. Is this due to differences in judicial culture, or does it reflect weaknesses in the system of checks and balances?

The Supreme Court’s power to intervene in constitutional matters is prescribed within the Constitution. Judges are obligated to comply with constitutional dictates. Judges apply the law and contribute to its development through judicial interpretation. However, they cannot utilize their judicial power to legislate.

That being said, the Supreme Court has an impressive record of defending and upholding human rights in areas such as liberty, freedom of expression, discrimination, and LGBTQ+ rights.

* The drafting of the 1968 Constitution involved not only local political input but also contributions from British and Indian sources, developed over a lengthy process. Today, do we have the capacity to undertake and successfully complete this exercise on our own?

Yes, we can, but it would be helpful to get advice from experienced people from other countries, especially on constitutional and human rights issues. Learning from international experience is very important in these areas.

Mauritius Times ePaper Friday 14 March 2025