The Socio-Culturals

The leaders of socio-cultural organizations have a bounded duty to fulfil the primary objects of their organisations whatever their political colour

In recent elections held at the Arya Ravived Pracharini Sabha (ARPS) and the Mauritius Sanatana Dharma Temples Federation (MSTDF), the respective incumbents were ousted and new teams voted in. In particular, it is the replacement of the leaders that seems to have caught the attention of social media and commentators in the press, in a series of communications on these elections. The main point made was that the ousted heads were pro-government, and that pro-government MPs had engaged in an aggressive campaign in their favour. Despite which they lost.

This is being interpreted to mean that the rout of these pro-government candidates and their replacement by others, presumed to be either more pro-Opposition or at least not pro-government, is a sign of things to come. Namely, it is a reflection on the popularity of the present government and a foreboding of the outcome of a future general election. We are not there yet, and the larger issue that should be of interest to us is the existence and role of the socio-cultural organizations.

There is no doubt that their founders were very clear that the thrust of these organizations was the awakening of the masses, their education and their social emancipation. It is such inputs which would allow them to make enlightened choices when it came to their advancement in Mauritian society through different platforms, one of which would be political. This has served the masses well for a long number of years, with the larger interest overriding narrow personal or sectional ones.

If over the years there has been a devaluation of the leadership for a number of reasons, one of which having to do with their kowtowing to politicians of all ilk (usually for personal advantages) such that it is felt that they need these same politicians to get elected or re-elected, that in no way dilutes the role of the organizations which have contributed significantly to the advancement of the community, each contributing in its own way. Working with the government of the day should not pose a problem in itself, but it has to be for the promotion of the larger interest of the masses – not the short term, narrow interest of political patrons, if any. National issues like inequality, the problems facing the small planters’ community in the sugar sector, Nine Year Schooling, growing alcoholism and the ravages of synthetic drugs all over the island, conversion, family breakdown, etc., are some of the themes that should also interest the socio-culturals.

One must not therefore fall into the trap of questioning the need for the existence of these organizations, which is the case in the hidden theme in the debates over the results of the election at MSTDF and ARPS. Their importance must be divested from the politics that accompanies the renewal of their mandate, and their leaders have a bounded duty to fulfil the primary objects of their organisations whatever their political colour. The earlier this is understood the better it will be for the organizations and the community they serve, and in the larger interest of the country as well.

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Revisiting the Constitution

The formal process that led to the adoption of the Constitution of Mauritius started exactly 50 years ago on August 22, 1967, which means that we now have the benefit of almost half a century of constitutional practice and case law. It may therefore be opportune, 50 years down the line, for us to review whether the guiding principles that went into the drafting of our Constitution are still valid or if there is a case today for a full-fledged review of our Constitution or whether it simply needs to be updated to reflect modern trends specially in the area of protection of fundamental rights. This forms the subject of the book ‘Constitutional Law of Mauritius’, authored by Milan Meetarbhan and launched this week.

There is no argument about the fact that the harmony, relative peace as also progress that Mauritius has known during the past 50 years are in a large measure due to the fundamental guiding principles enshrined in our Constitution and the adherence by the different stakeholders, including the post-Independence generation of politicians, generally to the values and respect for such principles as regards the rule of law and other constitutional protections like freedom of association, of religion, etc.

In support of these principles, the Constitution of Mauritius does provide for some form of protection to those officials operating in specific areas of public life/administration – law and order, justice, etc — with a view to empowering them to exercise their powers in the public interest, without fear or favour. However a Constitution is only as good as the men and women who exercise the powers devolved upon them by that same Constitution in their respective positions, whether as politicians forming part of the Executive or MPs, or as heads of public institutions.

Instances where these powers seem to be usurped by the Executive – such as a sitting Minister publicly threatening another Minister and getting away with it -, or where those who are allowed to use them (for example the Commissioner of Police) failing to do so for fear of reprisal by the Executive may be examples of, as pointed out by Milan Meetarbhan, ‘major areas where the empirical evidence of the last 50 years suggests that serious consideration must be given to perfecting our democracy.’

Another area where such ‘perfection of democracy’ may need to be looked at is where ‘it has on some occasions been far too easy for ruling parties or alliances on their own to amend the Constitution as they please, often at very short notice and with little or no consultations.’ It is the very same Constitution which is evoked to take such latitude, as also the possibility of “reversing” the process of legislating: ‘At times instead of enacting legislation which is consistent with the Constitution, the Executive has rushed in constitutional amendments to ensure that the Constitution is consistent with the proposed legislation.’

This is a matter of real concern as, ‘In effect, instead of ensuring that the legislature adopts laws which are consistent with the Constitution, the same legislature may ensure that the Constitution is made consistent with the law that it proposes to adopt’.

A related issue is the use of referendums to bring about amendments, and yet not being able to because, paradoxically, the Constitution may be used to allow parliamentary supremacy to override constitutional supremacy, as observed by the author: ‘As you know there are two sections of the Constitution, Sections 1 and 57(2) which can only be altered if three quarters of the electorate support the amendments in a referendum and these are then approved by all members of the Assembly. But the requirement for a referendum and unanimous vote in the Assembly can itself be amended by three quarters of members of the Assembly. So once again the Assembly could have the last word.’ This is no doubt a major conundrum that needs to be resolved.

On the other hand, in its present form and content it does not appear that the Constitution provides the possibility and the right to any concerned citizen – unless the latter can demonstrate his locus standi in the matter – to question the application of the law, or unjust administrative action which at times may seem to have been “polluted by the inflow of noxious political contamination” as Prof De Smith would put it, or any dereliction of duty on the part of the concerned public official. And so, although ‘Our Courts have generally provided constitutional redress to aggrieved citizens… we need to consider whether a specialised Constitutional Bench should be established and whether the rules on locus standi need to be re-examined so that our compatriots can seek constitutional redress in a wider range of cases than the present relatively restrictive rules would allow them to do.’ The author goes on to suggest that reforms may be needed in several other spheres of the citizen’s life, such as fundamental rights, because ‘There has been considerable global progress…on the nature and scope of rights, not only political and civil rights but also economic and social rights. We need to reconsider our fundamental rights framework to expand the constitutional protection of individual rights in our country and to move from negative rights to more positive rights that include social and economic rights.’

Significantly, the author is clear that ‘Whilst we study the Constitution and how it has been applied and enforced we have to remind ourselves that over and above the text of the Constitution we must also apply the values of constitutionalism.

Constitutionalism goes beyond a mere textual approach and includes values, norms and conventions. It is not just the letter of the Constitution that matters. A democratic State is not only one which complies with the strict requirements of its Constitution but also one which will at all times act in accordance with the core values of democracy and good governance.’

This is enough to give a good indication of the direction in which an Independent Review Commission ought to pursue its task, one which in light of the departures from the spirit of the Constitution that have been witnessed locally down the years now seems to be a matter of urgency.

• Published in print edition on 25 August 2017