Interview: Milan Meetarbhan
Best Losers Appointed by Party Leaders and not ESC: ‘Most regressive measure 50 years after independence’
Our guest this week is Milan Meetarbhan who is a well-known Constitutional expert and has authored a book on the Mauritian Constitution. He has also been Mauritius ambassador to the UN besides being adviser at the PMO. He gives us his informed views on a number of issues, among others the ongoing Commission on the Sobrinho-Presidency affair, electoral reform, modality of monitoring the implementation of the recommendations of the Drug Commission Report, etc.
Mauritius Times: The Government’s commission of inquiry on former President Gurib-Fakim’s commission, set up to determine if there has been any violation of the Constitution by the latter, has started its proceedings this week. What is it that is really sought to be achieved by the Government through this commission of inquiry, given that this is quite different from a Tribunal which could have recommended any appropriate action to be taken in case the accused party is found to have erred one way or the other?
Milan Meetarbhan: Since a Commission of Inquiry consisting of three Judges of the Supreme Court has started its work, I will abstain out of respect for the Commission to comment on any substantive issue to be determined by the Commission.
I can only note that the law under which the Commission was appointed provides for inquiries and not for determination of legal issues. The powers of a President (of the Republic) and the manner in which these powers may or may not be exercised has been a matter of debate for some time. As a general rule, a determination as to whether there has been a breach of the Constitution should, in my view, be made by the Supreme Court. I am sure that many lawyers and many observers will be waiting to see what is the view which the Commission will take of its own Terms of Reference and the extent to which a commission appointed under the Commissions of Inquiry Act also has the power to make such a determination.
Having said this, I do share the view that when Government suggested before the former President resigned that she might have been guilty of misconduct, the Government chose not to appoint a Tribunal as provided for in the Constitution to investigate the allegations. Since they refrained from appointing such a Tribunal, they waited until she was gone to appoint a commission of inquiry, albeit with wider Terms of Reference, to inquire. This was not the correct way to act. Since this Government went into a frenzy in its first few months in office to vilify and harass its political opponents, has it now turned its legal hounding zeal towards its own nominees once they leave?
* One may also question the real motivation/s of the Government in setting up this inquiry given that Mrs Gurib-Fakim is not there anymore, and is unlikely to be a pain to the government of the day. What’s your take on that?
You will recall that, in the wake of Mrs Gurib-Fakim’s resignation, there was tremendous pressure on the Government to appoint a commission of inquiry into the Sobrinho saga.
Faced with such pressure, the Government did announce the appointment of a commission of inquiry though not into the serious concerns regarding the whole Sobrinho affair but about the conduct of one of the alleged protagonists of the affair. It could have been a shrewd manoeuvre to deflect attention and buy time by throwing some meat to the wolves.
There may have been a second motivation. The PM may have been greatly piqued by the President who, at some point, had outsmarted him and therefore wanted to also show who really calls the shots.
* What happens next if this commission of inquiry concludes that Mrs Gurib-Fakim had indeed violated the Constitution or otherwise?
We have to wait and see first whether the Commission takes the view that it can under the Act and under the Constitution really make a finding as to whether there was a violation of the Constitution or not. Even if it can do so, whatever the finding is, that may be the end of the matter. Either because the present Government decides not to do anything about it because it has already obtained its pound of flesh or because by the time the Commission releases its report there may be a new Government which has other priorities.
We cannot dismiss the view that for the Government of the day, appointing a commission of inquiry was far more important than what the findings of the commission will be eventually. The optics of the appointment served the desired political purpose at a particular point in time when the clamour for an inquiry was high.
* The Caunhye-Devat-Jugessur-Manna Commission shall also make recommendations relating to the removal and suspension of a President or Vice-President “including the appropriateness of the mechanism of a Tribunal for such removal in order to ensure the proper and uninterrupted functioning of the institutions of democracy and the rule of law in conformity with the Constitution”, as well as with regard to the immunity from legal proceedings against the President or the Vice-President. Do you have the feeling that the unavowed motivation here is to weaken the status and powers of the Head of State?
I have written and spoken so much about the need to review our constitutional regime and the powers and mode of election of the President that I cannot say that all these issues need not to be looked at.
But there are two strong reservations with what is being asked of the Commission. First, I reject any piecemeal approach to particular issues warranting constitutional reform. Second, is it really up to a Commission of Inquiry, however distinguished its composition may be, to study and make recommendations on constitutional reforms?
* Is this the right forum to ponder these issues and make recommendations thereon? If not, what do you think would have been the more appropriate way to go about it?
The issues relating to presidential powers, immunity and election need to be looked at – but, as I said earlier, not in a piecemeal manner.
In Mauritius, the Governor General was initially given wider powers than those usually given to Governor Generals in newly independent Commonwealth countries, because of specific concerns and demands in the country in the 1960s.
When Mauritius became a republic, the President inherited these powers. I am one of those who believe that, under our constitutional regime, a President who does not have a mandate from the people does in fact have a whole range of actual powers. I am not opposed to a wider allocation of powers rather than concentrating powers in the hands of one person, to perfect our democracy, but this can only be done if the President has greater legitimacy.
In any case a commission of inquiry is certainly not the appropriate means of starting a debate on these issues.
* Another issue that is being heard by the Supreme Court relates to the case entered by Resistans ek Alternativ (REA) which takes issue with the transfer of power from former PM Sir Anerood Jugnauth to his son Pravind. Mrs Gurib-Fakim has been assigned as witness to enlighten the court as regard the circumstances in which the resignation of SAJ took place as well as those relating to the issue of official letters for the swearing in of the new PM and other ministers by the office of the former president, and how the designation of Minister Mentor was communicated to her office. This is not to prejudge on what may come out of this case, but do you see the judiciary refusing to encroach on parliament’s territory with respect to the issues raised?
I understand that there are two sets of issues arising out of this transfer of power from father to son currently before the courts.
One of these is whether the sequence of events was such that the President was in fact put before a fait accompli and did not exercise independent judgment with regard to the appointment of a new Prime Minister. I do not wish to comment on the merits of pending cases. However, I must say that there are some fundamental matters in the life of a nation for which the seal of constitutionality or legality does not suffice.
In a democracy the test of constitutionality is not the only one that matters. This test is a judicial one. But other relevant tests as to whether something is ethical or moral or acceptable are not always within the province of the judiciary but are made before the court of public opinion.
The people want to see adherence to values and norms which make them comfortable and secure and which sustain the democratic fabric of the society which they and their children will live in. Anything which shakes their belief in the underlying democratic principles which they rely on, makes them feel insecure.
* There is also the issue regarding the follow-up and implementation of the recommendations of the Drug Commission: do you also subscribe to the view as expressed by different parties that a parliamentary committee would be more appropriate than the ministerial committee set up by the Government?
I believe that it is important that on such grave matters as drug trafficking and consumption, which seem to have surged recently, we have to avoid making such matters a political football. I am shocked at how politicised these human and societal issues are and how they are used for political ends by someone trying to show that he is the real Rambo and blaming his predecessors for the serious threats facing the country.
In this context, an all-party parliamentary committee monitoring the implementation of the recommendations of the report would have helped to build national consensus instead of continuing the futile petty political bickering of who did what on such a serious issue as rampant drug addiction and trafficking.
Of course this does not mean that individual government departments and other agencies cannot already start working on the recommendations of the Commission but the overall monitoring and involvement of all political parties would have shown a real national commitment.
* But isn’t true that Government, any government for that matter, would choose to monitor and control the implementation of measures relating to matters of law and order generally and to such a serious issue as the fight against drug trafficking?
Yes, at the end of the day, it is the executive branch of government that is responsible for taking the necessary action. But the bipartisan support for such action would give the Executive a stronger hand in tackling the scourge of drugs.
* Although generally welcomed by different quarters across the board, there have been lately some criticisms levelled against the Drug Commission’s report relating to a number of “oversights” relating to its decision not to call for questioning the PM and Home ministers, the head of the police force, and what are perceived as “une politique de deux poids et deux measures” with respect to barristers called before the Commission. What’s your take on these matters?
I can understand why some people would be asking themselves why the Minister responsible for Home Affairs and the head of the police force did not depone before the Commission. In the case of the PM, he stated publicly that he had asked to depone, following an allegation made against him by another witness but then we did not hear anything about this again.
As to whether there has been a “politique de deux poids et deux measures” with respect to barristers, I trust that the Commissioners must have assessed the information available in relation to various individuals and reached their findings on the weight of the evidence available in each case. To suggest that there were “deux poids et deux measures” would presuppose that the evidence available in all cases had the same weight but that the findings were not the same. I cannot say that that was the case.
* We also learn that the ministerial committee which had been sitting on the matter of electoral reform would come up with recommendations with respect to the funding of political parties – nothing heard regarding electoral reform proper. Isn’t it rather late in the day to implement change in the manner parties are to be funded?
Ideally we should have comprehensive electoral reform which would concern the electoral system, the functions of the Electoral Supervisory Commission, constituency boundaries and funding of political parties. But I guess that this is not what is currently on the table. The ruling party will pick and choose.
As far as the electoral system is concerned, I hope that what has been reported about Best Losers appointed by the Electoral Commission being replaced by nominated members chosen by leaders of political parties is not true. If that were indeed true, it would be one of the most regressive measures introduced in our Constitution 50 years after independence. This would in effect replace the Electoral Commission, which is a creature of the Constitution, by party leaders.
In addition, the Commission appoints additional members as Best Losers in accordance with criteria defined by the Constitution. Party leaders will use their own discretion and will not apply pre-determined constitutional criteria. This is totally unacceptable. I hope that we will have enough parliamentarians who will not be prepared to cast their vote for such a regressive measure.
* At the end of the day, change will only happen when it’s in the interest of governments to see them happen, isn’t it? Do you therefore see a code of ethics for parliamentarians in place any time soon?
It is true that changes only happen when governments have an interest in the change and not because change is the right thing to do. Unless of course when governments are forced to bring about change. This is what happened during the Arab Spring.
I heard two government representatives on a radio show this week ineptly justifying why there should be no change to parliamentary practices. Their spurious argumentation clearly shows that the government is not interested to change something that suits them well but does not suit our democracy.
Many mature democracies and some States in the region have now adopted a Code of Ethics for parliamentarians. But such a Code will be meaningless unless there is a proper enforcement mechanism.
In a country where backbenchers never vote against the party whip, we cannot leave enforcement to a parliamentary committee where a vote will be taken strictly on party lines with foregone conclusions. There must be an independent investigatory and enforcement mechanism.
* One last question: what are your views on the need to revise the Public Officers Protection Act as recommended by the Law Reform Commission?
I have addressed this issue in my book on Constitutional law and I believe that the present rules which treat public officers as a separate class of litigants is not acceptable in a country where Rule of Law prevails.
There are serious restrictions in Mauritius for citizens to seek redress against Public Officers. Not only is the time limit for instituting proceedings shorter than for similar cases against other persons but there are also other procedural rules and provisions for award of only nominal damages in certain cases, which give the public officer a privileged status.
In addition, there are strict time limits for applying for judicial review of administrative actions.
Furthermore, under the Constitution, there are strict locus standi rules for seeking redress against the State for violations of constitutional provisions.
So on the whole whilst remedies may be available under the law or the Constitution, there are rules which restrict the rights of citizens to seek redress against public officers and/or the State.
The question we have to ask ourselves in the 21st century is whether judicial proceedings against public officers and the State should be governed by the same rules that apply to all other proceedings.
* Published in print edition on 10 August 2018