Should a former President stand as a candidate?

“We have yet to see a former President of a truly democratic country standing as a candidate and getting involved in partisan politics after having held an office that requires him to be above the fray of party politics. If we just take the example of India or the United States, there is no living example of a former President dipping in politics…” 

— S. Modeliar

Rumours of electoral ambitions have been going around about a former President of the Republic but he has not denied that under certain circumstances he might stand as a candidate at the forthcoming general elections. He has left no lurking doubt that if his wishes do materialise he would contest the elections under the MMM banner or shield as his son is militating under the umbrella of that party. LEX has already commented on this matter in Mauritius Times last week. He is the only one to have done so and he asked the very pertinent question whether a former President who is or should have been above party politics once he takes the oath of office is morally justified to go back to the political arena on the expiry of his term of office.

When a President assumes office he subscribes to the oath that is prescribed in the Third Schedule to the Constitution and which reads: 

“I… do swear (or solemnly affirm) that I will faithfully execute the office of President and will, to the best of my ability without favour or prejudice, defend the Constitution and the institutions of democracy and the rule of law, ensure that the fundamental rights are protected and the unity of the diverse Mauritian nation maintained and strengthened.”

During his tenure of office a President enjoys certain privileges and immunities in that no civil or criminal proceedings shall lie against the President in respect of the performance by him of the functions of his office or any act so performed. These privileges and immunities are life-long: they continue after he has left office. A serving President can only be sanctioned for violation of the Constitution or a serious act of misconduct and according to a cumbersome procedure that necessitates a motion voted two thirds of the votes of Members of the Assembly to set up a Tribunal for the purposes of investigation. All this shows that except for the expiry of his term of office a President cannot be removed by the hands of man.

After he has left office, a President who now has the title of former President enjoys some substantial material advantages all paid by the taxpayer. Though he performs nothing for the State, he still enjoys the pay packet he was earning as President. It is not clear whether it is free of income tax. He has the privileges of an official car and of police protection. There should be nothing wrong with all these privileges that continue after the expiry of the term of office of the President. The same situation prevails in many countries. But we have yet to see a former President of a truly democratic country standing as a candidate and getting involved in partisan politics after having held an office that requires him to be above the fray of party politics. If we just take the example of India or the United States, there is no living example of a former President dipping in politics.

Why is that so, one may well ask. The office of President confers a particular stature to the bearer of that office. He is the defender of the whole nation and the Constitution. He is not supposed to get involved in politics. What he has acquired by way of stature and prestige continue after he has left office and he should keep it that way instead of exposing himself to mudslinging and slurs of a political nature by joining partisan politics again. It is presumably for that reason that he still enjoys material advantages of a substantial nature after he leaves office. Morally then, should a former President stand as a candidate?

Now if we think about the nature of our Constitution there may be a constitutional hurdle to the ambition of former President Uteem though that hurdle is not spelt out in the Constitution. But then there are many unwritten rules that we deem to be part of our Constitution.

Before Mauritius became a Republic, the Head of the State was Her Majesty the Queen of the United Kingdom and her representative in Mauritius was the Governor General. Does hat set-up not require us to do some thinking on the nature of the Constitution that was given to us on independence? The Supreme Court in the landmark case of Vallet against Ramgoolam in 1973 stated: “There can be no doubt that our Constitution-makers by embodying in it much of the constitutional practice and principles of the United Kingdom, aimed at giving Mauritius a democratic form of government closely akin to that enjoyed by the British people.” This is why in common parlance we refer to the Constitution of Mauritius as one based on the Westminster model.

One would not dream of a former governor general standing as a candidate at an election because there are certain unwritten rules or conventions that would hold that to be wrong. Judges who are appointed to the Supreme Court have no right to go back to practise at the Bar. There is no written rule in the Constitution on this. But judges sign an undertaking that they will not go back to the Bar and they respect that undertaking. We do not know whether former President Uteem ever had to deal with any request from a former judge to go back to the Bar and if he did how he would have dealt with it. But the blunt fact is that judges feel bound by that unwritten rule which has acquired the force of law.

If former President Uteem persists in going ahead, an elector should come forward and ask the Supreme Court for an opinion; in the absence of such a development the responsibility for doing so may well have to be shouldered by the Electoral Commission. At any rate, morally it would be highly reprehensible for a former President to stand as a candidate. Legally the unwritten rules and conventions would militate against it.  

S. Modeliar