“A President cannot remain in an ivory tower and be perceived to be a yes-man”

Qs & As – Presidential Powers

‘The Privy Council did not find the Betamax-STC contract to be tainted with vicissitudes. One is entitled to ask: What public interest will the commission deal with then?’

By Lex

The representations made by Hon Arvin Boolell and other LP leaders to the President of the Republic regarding the speakership and the parallel appointment by the President of a controversial and legally challenged Britam-Commission of Inquiry, is the opportunity to delve into his limited powers, other than that of a moral authority. Would it be too much to expect a President who is not content merely to rubber-stamp Executive orders, but one who will show a minimum of guts that would fit someone entrusted with the nobler vision of “upholding and defending” the Constitution? Read on the views of Lex.

* Under the Constitution, the President of the Republic of Mauritius is the Head of State and Commander-in-Chief of the Republic, and is enjoined under article 28 to uphold and defend the Constitution, and ensure that institutions of democracy and the rule of law are protected. What powers enacted into law does he currently have to allow him to properly fulfill his constitutional obligations?

The President generally has to act on the advice of the Cabinet. The instances where he can act in own deliberate judgment are expressly spelt out in the Constitution. The question arises in practice as to whether when the President acts in his own deliberate judgement he is constitutionally free to do so or whether he should discuss the matter with the Prime Minister who is the real holder of executive and political power. Our system of government is such that that we have a presidential prime minister; with the President of the Republic as just a figurehead.

* Recent events have brought to the fore the role and responsibilities of the President. He has appointed, on the advice of the Cabinet, a commission of inquiry into the Betamax-STC contract of affreightment. Opposition MPs have called on him in relation to the controversial speakership of Mr Phokeer. Isn’t it a fact that the President cannot really do anything as regards both matters?

Technically, he cannot. But he does need to pull his guts to tell the Prime Minister during their weekly meetings that democracy does not mean that it allows for a Speaker to act as member of the executive and is free to maul the Opposition. He should be able to discuss with the Prime Minister and Minister of Home Affairs matters in relation to the police and the public perception that the police force is not performing according to the legal rules. He should be able to mention how all the institutions except for the judiciary and the office of the Director of Public Prosecutions are also perceived to be at the beck and call of the executive and that should stop.

There are several other issues where the President can intervene through the Prime Minister. In so far, the Betamax commission of inquiry is concerned, it is clear even to the citizen lambda that it’s politically motivated, with a view to nailing the former Prime Minister Navin Ramgoolam. All the legal issues mentioned in the terms of reference of the commission of inquiry have been canvassed before the Singapore Arbitral Tribunal and by the Judicial Committee of the Privy Council. Should not the President have sought advice before rubber stamping the advice of Cabinet to set up such an inquiry?

* One would recall that Sir Seewoosagur Ramgoolam did not or could not, in his capacity of President of the Republic, go against the MSM-PMSD government’s decision to amend the Newspaper and Periodicals Act in 1984. The only option available to him then was to give his assent or resign, isn’t it?

Yes. Only one president chose to resign over what he considered a controversial piece of legislation. And that was Cassam Uteem who refused to give his assent to the Prevention of Terrorism Act (POTA).

* As “head of State and Commander-in-Chief of the Republic of Mauritius”, could the President have sought explanations from the relevant authorities as to why police inquiries in recent crimes have not been expedited, or why Safe City recordings appear to have been lost or would be non-existent?

Officially, no. But as the person who is obliged under the Constitution to uphold and defend the Constitution and ensure that (i) the institutions of democracy and the rule of law are protected, and (ii) the fundamental rights of all are respected, he was duty-bound to draw the attention of the Prime Minister to these disturbing elements. If he did, and his words fell on deaf ears, then he make a public statement.

* Former President Cassam Uteem stated to this paper, earlier this year, that “the powers and responsibilities of the President as Commander-in-Chief have never been spelled out or interpreted except to aver that the President holds discretionary powers, for instance, in times of crisis”. He added that “the Constitution provides that the President should be kept informed of all matters pertaining to the State”. This would therefore suggest that the President of the Republic can only, on the strength of his moral authority, try to influence policy decisions. That’s all he can do, right?

Yes. But during the Kaya riots Cassam Uteem made an appeal for calm. It is this kind of action that a President should take to uphold the rule of law. A President cannot remain in an ivory tower and be perceived to be a yes-man while the country is going to the dogs in so many sectors.

* On another note, we find that the Commission of Inquiry on the Betamax-STC contract has to inquire and report on the “the decision-making process of the relevant public bodies and public officials” concerned with the “negotiations and subsequent signing of the contract of affreightment”. Would Cabinet ministers also qualify as “public officials”?

Yes. As a rule, all those employed in the public service would be public officials. For the purposes of the Prevention of Corruption Act, which deals with corruption and money laundering, a public official means a Minister, a member of the National Assembly, a public officer, a local government officer, an employee or member of a local authority, a member of a Commission set up under the Constitution, an employee or member of a statutory corporation, or an employee or director of any government company and includes a Judge, an arbitrator, an assessor or a member of a jury.

* The Commissioners will also have to report on “whether the national interests of Mauritius were safeguarded by the public bodies and public officials” concerned with the Betamax-STC contract. What’s the basis on which a Court of Law or even a Commission of Inquiry can and will make a pronouncement on the issue of “national interest”?

When an arbitral award is being challenged before a court of law, one of the factors that would lead to the quashing of the award is that it offends against the public policy of the country where the award is to be executed. Public policy would encompass the public interest of the country. Public policy refers to moral, social, economic, cultural values of a country.

But the issue of public policy comes into play only if the contract is tainted with illegality. The illegality would refer to the status of the award, the conduct of the arbitral proceedings, and validity of the arbitration agreement.

In the International Arbitration Act of Mauritius, it is provided that an award may be set aside where the Court finds that (i) the subject matter of the dispute is not capable of settlement by arbitration under Mauritius law; (ii) the award is in conflict with the public policy of Mauritius; (iii) the making of the award was induced or affected by fraud or corruption; or (iv) a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the award by which the rights of any party have been or will be substantially prejudiced

The Privy Council in the Betamax judgment used the word vicissitudes to discuss whether the contract was illegal or not. It did not find the Betamax-STC contract to be tainted with vicissitudes and so the question of public policy did not arise. One is entitled to ask: What public interest will the commission deal with then?

* On 23 Nov 2014, Ivan Collendavelloo, of the l’Alliance Lepep announced the introduction of a Freedom of Information Act so that citizens, under certain conditions, could get information on contracts like the Betamax-STC’s CoA. “Nous faisons un pacte avec la nation…” said SAJ, and that was reported by Week-End. Interesting, isn’t it? A lot of water has since flown under the bridge, and we have yet to see the Freedom of Information law enacted…

We are all aware of how many pacts have been made by politicians of various hues with the people since so many decades. Similarly, there were those made by the leaders of the l’Alliance Lepep in 2014. Their enunciated priorities were to wage war against nepotism, favouritism, opacity in the award of contracts, cover-ups in police investigations, waste of public money, trampling of democratic principles, etc. What have we seen instead? Do you really believe a Freedom of Information Act is their concern?

* Published in print edition on 24 August 2021