“There are issues for which there is no judicial remedy and the ultimate sanction can only be a political one”

Interview: Milan Meetarbhan on Mauritius’ Constitutional Journey

* ‘We have the capacity to modernise our Constitution…
… politicians committed to democracy do not have to be forced into adopting reforms’

‘ The leadership responsible for appointing people to positions of responsibility will appoint those who reflect their own culture’

As Mauritius approaches its 56th Independence anniversary, Constitutional lawyer Milan Meetarbhan provides a profound analysis of the 1968 Constitution’s influence on the nation. Delving into its five-decade role, he assesses its effectiveness, potential reforms, and the evolving challenges confronting the country. The interview critically examines safeguards, constitutional amendments, and their expedited processes. Milan Meetarbhan underscores the imperative of political will and public awareness in propelling constitutional reform.

Mauritius Times: In the context of commemorating Mauritius’ 56th Independence anniversary next Tuesday, could you please elaborate on the influence of the 1968 Constitution on the country’s trajectory and performance?

Milan Meetarbhan:The 56th anniversary of our Independence also marks the 56th anniversary of our Constitution which came into force on 12 March 1968. An analysis of how our constitution has worked or been interpreted or has not worked over more than five decades will, in my view, show that on the whole the broad constitutional framework has served us rather well. But of course, the same Constitution can work differently under different leaders or in different circumstances.

In addition to specific provisions of the written Constitution, a country’s broader constitutional regime is made up of practices, conduct and judicial caselaw.The test applied to the constitutional regime, or the test of our democratic culture may yield different results from a textual analysis of the Constitution.

When leaders believe and declare publicly that they can do something because there is nothing in the Constitution which states that they cannot do it, irrespective of how unethical or undemocratic or of how it shows little respect for the people and for institutions, then such conduct shapes the contours of the constitutional regime.

* The framers of the 1968 Constitution couldn’t anticipate a scenario in which investigative agencies and quasi-judicial institutions would be manipulated to track and intimidate political opponents effectively. Does this imply that there is no mechanism in place to prevent or counter such abuses?

The 1968 Constitution, though largely based on the model constitution granted to newly independent island states of the Commonwealth, also contained provisions which were not necessarily found elsewhere. These specific features of our Constitution were meant to provide safeguards that were required in a multi-ethnic and multi-cultural society like ours and also because of the strong opposition to independence in the case of Mauritius.

One of these specific features was that certain powers were given to the Governor-general to shield the decision-making process in some areas from political interference and, in addition, appointment of the holders of constitutional posts like Commissioner of Police, DPP and Director of Audit were to be made by independent bodies and these holders were also given security of tenure. But the days when a CP could tell the PM, “No Sir, I cannot do this” are probably something of the past.

The Constitution has remained the same, the safeguards are still the same but the holders of the office and/or their political masters are not necessarily of the same culture. The Office of the DPP wants to retain its independence and be seen to be acting independently, but the political leaders strongly resent this show of independence.

* We have also observed previous governments manipulating the Constitution for their political interests. In 2001, a constitutional amendment, engineered within 24 hours, abolished the Economic Crime Office to prevent the questioning of a minister. On another occasion, a constitutional amendment was hastily passed to retroactively validate all elections since 1967, ensuring that then-incumbents weren’t held accountable for any breaches of electoral law. What’s your perspective on that?

The 1968 Constitution provided that amending some provisions of the Constitution would require a three-quarters majority in Parliament and other provisions could be amended by a two-thirds majority. It must have been assumed at the time that such a qualified majority would require the support of both the ruling party and the opposition as it was unlikely that one party/alliance on its own would be able to garner enough votes to meet the threshold required.

However, results of elections held in 1982, 1991, 1995, 2000 and more recently in 2014 have shown that a ruling party or alliance could under our present electoral system in fact obtain more than three-quarters of the seats in the National Assembly. In effect a government which obtains less than 50% of the popular vote at the general elections could end up with enough seats to amend the Constitution on its own without the support of the Opposition.

Indeed, some governments which had the required majority to amend the Constitution on their own have not hesitated to use their majority to amend the Constitution with indecent haste and without prior consultation to safeguard their own interests.

* How effective has the judiciary been in curbing abuses by the Executive over the years? The prevailing perception these days is that the judiciary pales in comparison to the proactive and resolute approach of the Indian Supreme Court in defending the fundamental rights enshrined in the Indian Constitution. Is this a question of judicial culture or an ineffective checks and balance mechanism?

In Mauritius, the judiciary can act as a check on the executive branch of government by way of judicial review of administrative actions. The judiciary also has the last word on the constitutionality of laws made by the legislative branch.

There has been on the whole a rather conservative approach to judicial control though the judiciary has on some occasions declared acts by public bodies to be unlawful and it has also quashed legal provisions which it considered to be in breach of the Constitution.

However, you are right to say that the Indian judiciary has over the years adopted a more progressive approach in its upholding of fundamental rights and as a check on decisions of the executive. Over the last couple of weeks, the Indian Supreme Court struck down a law concerning political donations and acted diligently over a challenge to a mayoral election. The Indian judiciary has also adopted a generous interpretation of procedural rules so that the citizen complaining of violation of his rights can be heard. Judicial activism in India is often cited in legal literature worldwide.

In Mauritius, we have a rather restrictive procedural framework governing applications for constitutional redress. But the question which academics and practitioners debate very often is the extent to which judges may have a more purposive, generous and flexible approach to matters regarding breach of rights or misuse of executive powers.

* In light of the inability to seek redress or combat Executive abuses, people have resigned themselves to the belief that only the ballot box and regime change at the end of a five-year mandate are the sole solutions to an oppressive situation. Does that not reflect poorly on the country’s constitutional regime?

We have to acknowledge that there are issues for which there is no judicial remedy as such and that the ultimate sanction can only be a political one. In a democracy, the electorate is theoretically the ultimate judge and may vote with its feet against an executive which abused its powers.

This is not necessarily a constitutional weakness. Judges have to act in accordance with the law and though at times there may be some room for a liberal interpretation to reach a just solution, it is not always possible to do that.

* Are there specific areas in which the 1968 Constitution may be deemed outdated or in need of revision to better reflect contemporary values and aspirations?

Now that we have more than five decades of experience of the current Constitution there are areas which we can identify as loopholes, or which need to be modernised and updated.

For instance, I have already mentioned the need to revisit the conditions governing applications for constitutional redress. Experience has shown that the provisions regarding the timetable of elections, the conduct of elections and supervision of the electoral process must also be reviewed. However, constitutional reform needs a holistic approach, and we need to have a comprehensive review of the Constitution and decide on reforms in a comprehensive manner.

The question that also needs to be addressed whenever we talk of constitutional reforms is how to proceed, who will look at provisions that have to change, new ones that must be included, and ultimately who and how are the recommendations for change adopted. I do not believe that there is the political will to initiate the reform process when the existing constitutional regime has served the interests of those in power very well.

* In what ways do global trends, technological advancements like the potential influence of information technology, AI, Data Analytics, etc., on election outcomes, or changes necessitate a reevaluation of the Mauritian Constitution?

Indeed, it’s not only the weaknesses and lacunae identified over the last five decades that will have to addressed in the course of a review exercise. The review will also have to look at new democratic norms across the world and the wider gamut of fundamental rights that have to be protected in view of technological advances but also of the broader view of rights relating to education, health and the environment which must be protected.

* The abolition of the Best Loser system, the requirement to declare one’s community for election purposes, reform of the electoral system with a call for Proportional Representation and concerns about potential instability arising from such a shift, the concentration of powers in the hands of the Prime Minister, and the proposal to impose term limits on the latter are some of the issues that have been discussed in recent years. However, addressing these matters represents a ‘grand chantier’ with substantial and complex issues involved. Is Mauritius sufficiently mature to resolve these challenges?

My answer would be an empathic yes. We have the capacity to modernise our Constitution but until and unless there is a political will to change, the debates will remain academic.

However, I believe that public opinion can eventually lead decisions makers to adopt the revision process if the electorate is made sufficiently aware of the need for reform and is party to the initial discussions on the need for reform and the new provisions that must be incorporated in a revised constitution.

It is public pressure that will lead those who have a vested interest in maintaining the present framework or who have other more immediate political concerns, to actually initiate the revision process.

* Besides the inputs of the then-local political establishments, we understand that there were also inputs from other sources—mostly British and Indian—that went into crafting our Constitution in the years preceding Independence, and it was a lengthy process. Are you saying that we can today manage this exercise on our own and see it through?

Though the Mauritian Constitution was not adopted by the people of Mauritius but granted by the colonial power, there were consultations between the British authorities and Mauritian political leaders on the drafting of our Constitution.

However, there is some evidence of support and advice received by the Mauritian Labour Party, in particular from Sir Seewoosagur’s friends in India and in Africa during the constitutional talks. SSR had himself been close to progressive circles in the UK, namely those fighting for political emancipation from colonial rule in their own countries, whilst he was a student in London, and he could call on support from his friends in his own struggle for independence of his country.

Of course, we will have to look at the constitutional experience of other countries in whatever review exercise we undertake and seek inspiration from judicial pronouncements and academic debate elsewhere. We may even enlist the support of experts from abroad in the process. But, at the end of the day, the process can be led by Mauritians and the recommendations will have to be adopted by the Mauritian people.

* Are there successful examples from other countries that have undergone constitutional revisions, providing valuable insights for Mauritius?

One very good example from our own region is that of Kenya which has now adopted a modern Constitution which is much more protective of rights than many other countries on the continent. However, in the Kenyan case it is massive protests and riots after a controversial election which brought about an agreement amongst political parties to set up the mechanism for adopting a new constitution.

Politicians committed to democracy do not have to be forced into adopting reforms. They do it themselves on their own initiative. Those who boast about modernising the country by building roads and flyovers have never shown any interest in modernising our constitutional regime by reinforcing rights, independence of institutions and so on.

* It’s evident that the success of a country also depends on the political culture, the commitment of leaders to constitutional principles, and the effective implementation of laws; a Constitution alone cannot ensure success without capable and responsible leadership. If that condition is met at some time in the future, would it still be necessary to revisit the 1968 Constitution?

Yes, we have seen in the past some countries having formally adopted constitutions the texts of which can theoretically be used as models for democratic states but in practice these countries are anything but democratic. Autocrats can hide behind constitutional principles interpreted to suit their interests or behind absence of specific prohibition in the Constitution to justify their arbitrariness or unethical conduct and still claim legality or legitimacy of their actions.

So you are right to stress the need to have the right “political culture.” There are laws and there are people. The same laws lead to different results under different people. There are complaints about the Parliamentary Speaker, and many have over the past few months blamed the 1995 constitutional amendment (providing for the possibility of electing a Speaker from outside the Assembly) for the decline in the conduct of parliamentary proceedings.

But this does not make sense because since this amendment, we have had Sir Ramesh Jeewoolall, Kailash Purryag and Razak Peeroo who were not members of the National Assembly and were appointed under the amended provision of the Constitution. They were all very good Speakers. Prior to the amendment Sir Harilal Vaghjee, who is universally recognised as a great speaker, was not a member of the Assembly.

It is not always the relevant constitutional provision that explains conduct. It’s the people that make the difference. The leadership responsible for appointing people to positions of responsibility will appoint those who reflect their own culture and deliver what they want and approve of.

At the end of the day, it’s all about the leadership to which the electorate decides to entrust the country’s future.

Mauritius Times ePaper Friday 8 March 2024