‘The government has made a start with the MIC, but it should be given time to deliver on its promises’

Qs & As

Tackling Past Wrongs and Forging a New Future

By Lex

The newly elected 60-0 government in Mauritius faces a formidable challenge as it begins its tenure, tasked with undoing the systemic issues inherited from the previous regime. With an absolute majority mandate, the government now has both the opportunity and the responsibility to deliver transformative change. Yet, the road ahead is fraught with difficulties, from addressing years of governance failures to combating entrenched corruption and inefficiencies — all while upholding democratic principles and the rule of law. In this week’s Qs & As, Lex delves into the critical priorities for the new administration, analyzing the structural reforms required, the complexities involved, and the potential hurdles on the path to meaningful change.

* The current government is confronted with a ‘vaste chantier’ in terms of undoing the wrongs and dysfunctions of the preceding MSM-led regime, and, by virtue of its absolute majority, holds a significant mandate to govern and implement a progressive agenda. The question is: Where should it start, while ensuring that its use of power aligns with democratic principles?

There are numerous instances of bad governance, malpractice, corruption, wastage, and the disappearance of public funds, which require time for the government to address effectively. The government has only been in power for two months, and the public is understandably frustrated that the alleged culprits from the previous regime have not been arrested. While the public’s frustration is understandable, individuals cannot be arrested solely based on public outcry. The rule of law must prevail. The government has made a start with the MIC, but it should be given time and an opportunity to deliver on its promises.

* One oft-repeated promise concerns the introduction of a Freedom of Information or Right to Information Act. Despite frequent mention, this promise has yet to materialize, with preceding governments arguing that the issue is too complex to legislate without proper consultations and thorough analysis of its implications for governance. Yet, similar legislation exists in other countries, where it appears to deliver on its promise of transparency and fairness. So why can’t it be done here? Is it safer for governments and their agencies, like the earlier ICAC, to remain shielded from such legislations?

When the MSM won the 2014 elections, Prime Minister Sir Anerood Jugnauth stated in Parliament that although many jurisdictions had adopted a Freedom of Information Act, the nature and scope of such legislation were still evolving. He emphasized the need for the Freedom of Information Act to adopt innovative processes to improve access to information, rather than merely promoting access in name only. However, this never materialized. Any government would be cautious about such legislation, as a law that is too broad could lead to the release of all kinds of sensitive information, while a restrictive law would prompt public dissatisfaction.

When Tony Blair was Prime Minister of the United Kingdom, he introduced the Freedom of Information Act, believing that it enshrined a “general right of access” to information held by all public bodies, subject to certain absolute exemptions and instances where disclosure was not considered to be in the public interest. Over time, however, Blair changed his position. Although he initially believed the legislation would benefit the public, he later felt that it had “tilted the scales” in favour of the media and their ability to publish confidential policy discussions.

This highlights the need for caution when drafting such legislation. It should not be a law that allows the public to invade all aspects of the private lives of politicians and other individuals. Careful consideration must be given to striking the right balance between transparency and privacy.

* Closely related to the previous question is the ongoing issue of governments’ refusal to provide transparency regarding the operations of State-Owned Enterprises, such as Mauritius Telecom, Air Mauritius Holdings, and projects like the Safe City Project and the Mauritius Investment Corporation. These entities are frequently shielded from parliamentary scrutiny under the guise of being private (commercial) companies, invoking banking secrecy (‘secret bancaire’), or citing confidentiality clauses, particularly in projects funded by foreign countries. Shouldn’t the ‘rupture’ agenda of the Alliance du Changement government seek to end these practices?

The policy of refusing to release information about State-Owned Enterprises (SOEs) on the grounds that shareholders have an interest in such enterprises is sheer nonsense. There must be legislation that compels transparency regarding how these enterprises are managed and operated. Take, for example, the mess at the STC, where millions of rupees have been squandered on legal fees. It is to be hoped that the new government will take a firm stance on this issue, whether it concerns the STC, Air Mauritius, or other state-owned enterprises.

In the book A to Z by Touria Prayag, one contributor wrote: “Theoretically, as indicated in the Constitution and Standing Orders, the government is accountable to Parliament regarding the use of public funds. However, and perhaps as expected, the effectiveness of Parliament’s role in this regard is severely diminished, to the point of being qualified as negligible. The multiple cases of misuse, waste, and abuse of public funds reported every year by the Director of Audit go unsanctioned, exposing the little consideration the government shows for representatives of the people in terms of accountability.”

This highlights the urgent need for greater accountability and transparency in the management of public resources.

* During the previous two mandates of the MSM-led governments, the resolution of electoral petitions took an unreasonably long time, creating prolonged uncertainty for petitioners and the electorate, with judgments in several cases being delivered almost on the eve of the next election. In countries like the UK and India, similar cases are resolved within six months. While this doesn’t undermine the integrity of the judiciary, it raises concerns. Similarly, we saw legal challenges by Opposition MPs against various controversial decisions made by the former Speaker of the National Assembly, Sooroojdev Phokeer, drag on for an extended period. So, what should the new 60-government do to address this issue?

The Privy Council has repeatedly drawn the attention of the Supreme Court to the excessive time it takes to determine a case. An electoral petition, in particular, has significant political repercussions. When and if the Supreme Court accommodates all manner of motions and requests for postponements from lawyers representing government members, the public has a right to be suspicious. While a judge may be independent in their mind, if the public perceives that they are not, this becomes a cause for concern.

The Constitution should be amended to establish a time limit for judgments to be delivered by the Supreme Court and lower courts. This would ensure timely justice and reinforce public confidence in the judicial system.

* There also seems to have been a reluctance by preceding governments to move forward with the establishment of a Constitutional Court, a proper Court of Appeal, and other reforms from the Mackay Report. These reforms were intended to enhance the effectiveness of Mauritius’ legal system and ensure alignment with international standards of justice and fairness. Why were these reforms not implemented? Can we now expect positive change under the current government?

The reasons behind this prolonged delay remain unclear. Now, the Attorney General has announced plans to establish a constitutional court. We will have to wait and see how this develops.

Additionally, the creation of a separate Court of Appeal should also be a concern for the government. There are complex issues to address, such as the composition of each court and the specific jurisdiction assigned to each one.

* It’s also necessary to ensure the independence of key institutions critical to the proper functioning of our democracy, such as the judiciary, police, Financial Crimes Commission, Electoral Commission, and others, so that they are shielded from political influence. How can the government ensure that these institutions remain truly independent in practice?

We may have any number of institutions in a country, but each must fulfill its intended role with complete integrity and honesty. The persons at the helm of these institutions should resist political influence and pressure. Once appointed, these commissions are expected to act independently. However, independence is a difficult concept to define. It is a mindset, an attitude. The independence and integrity of institutions depend on the individuals who make them up.

Can these institutions operate with complete independence and adhere to the principle of acting without fear or favour? Can they, despite the temptation of easy gains, carry out their functions with serenity? Can their members be perceived as fully independent from the government of the day? While the government cannot monitor independence daily, it is ultimately up to the individuals within these institutions to uphold these values.

* What else should a 60-0 government do, or rather, what should it avoid doing if it aims to bring about transformative change in the country?

This question is quite broad and speculative, as it covers various aspects of governance and transformation. It would be more prudent to wait for the President’s speech, which is expected to outline the specific policies and vision of the government. Such a speech will provide a clearer direction and framework for the transformative changes the government aims to implement, along with the priorities and strategies they plan to adopt. Until then, any discussion on the steps or actions of the government would be premature, as it would not be grounded in the official policy and objectives the President will set forth.

Mauritius Times ePaper Friday 17 January 2025