Our Constitution can be criticized as lacking in originality, and as being a mere template of the system of government of the former colonial power. These criticisms are unfair…
Constitutional development does not take place in a vacuum. It is shaped by the surrounding socio-economic and political environment. The Mauritian Constitution is no exception and this point could not be better illustrated to the visitor walking through a well-researched exhibition of the different stages of the history of our Constitution at Aapravasi Ghat, an initiative of the Office of the Attorney General. The exhibition is now open to the public.
Ours, like many former French and British colonies, was significantly influenced by the history of the sugar industry, the abolition of slavery, the arrival of indentured labourers and the struggle for representative government through universal suffrage. The exhibition refers to three important segments of our constitutional history.
First, the period of the French administration during which time the French introduced the Napoleonic Codes governing civil, criminal, commercial and procedural matters as legal instruments. Second, the period after 1810 up to 1948, marked by the 1814 Treaty of Paris (the ‘Treaty’) transferring the sovereignty of Mauritius to the British and the establishment of a legislative council in 1948 as a first step towards a representative system of government.
A template of the Treaty is on display. The astute visitor will see from the English version of the Treaty that the paragraph dealing with the cession of Mauritius and its dependencies, that the word “especially” is used to refer to our dependencies of “Rodrigues and Seychelles”. The emphasis was on Rodrigues and the Seychelles. It did not mean the other dependencies were not included to be ceded.
The French version of the same paragraph uses the word “notamment”. Hence, the source of the dispute over Tromelin. The French argue that the purport of the word “notamment” is limitative and since Tromelin is not mentioned in the Treaty, it was never meant to be returned to Mauritius.
The contention of Mauritius is that the French translation of the word “especially” is “nommément” and cannot be read as being limitative. Otherwise, how does one explain that other dependencies of Mauritius, such as Agalega and Chagos Archipelago, though not mentioned the Treaty, were ceded to Britain as dependencies of Mauritius.
The third period is the road towards independence, kick-started by the 1958 Constitution when universal suffrage was recognized. Under the crown colony after 1810, all powers were vested in the governor. He was an autocrat. He was neither accountable nor responsible to the people over whom he governed but only to the Secretary of State for the colonies. He presided over the Executive Council and had a power to veto all decisions of the Council once a matter was declared to be of “paramount importance of public interests”.
It is in that context that we must view the detachment of the Chagos Archipelago from the Mauritian territory by the then Council of Ministers.
The Council was presided over by the Governor General. It was under British rule, and the Mauritian Ministers sitting in the Council cannot be said to have been vested with the legal capacity to have consented to the detachment of a substantial part of the Mauritian territory.
Our Constitution, like many other Commonwealth jurisdictions with histories similar to ours, is the “Westminster model” of government. The “Westminster model” is not a legal term of art but a useful shorthand for describing a system of government characterized by some of the following key features.
First, a head of State separate from the head of government.
Second, the head of government is a Prime Minister who presides over a Cabinet of Ministers.
Third, an effective executive branch of government which is also Parliamentary inasmuch as Ministers must belong to the Legislative Assembly and are answerable individually and collectively for all policy measures of the government.
Fourth, an independent and impartial judiciary.
Fifth, an independent office of the DPP.
Sixth, the holding of national elections at regular intervals, normally every five years.
From one perspective, our Constitution can be criticized as lacking in originality, and as being a mere template of the system of government of the former colonial power. It was not even voted by an Act of the newly constituted Assembly of an independent Mauritius but by virtue of an Act of the imperial Parliament in Westminster.
These criticisms are unfair since the lack of originality was not due to any lack of vision or imagination on the part of the political leaders at the time of independence, but the result of pure political pragmatism.
We need not forget that we were divided on the issue of independence and on the question of representativity for minorities during the Lancaster talks. The “First Past The Post System” was equated to “winner takes all” and the fear of a homogeneous majority was considered real. There was a need for compromise, consistent with the ideals we have set ourselves. The Constitution offered the necessary guarantees to all parties.
Today, with the benefit of hindsight, we can affirmatively state that the Mauritian Constitution has withstood the test of time and Mauritius is a sovereign and democratic country.
* Published in print edition on 11 May 2018
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