Constitutionalism to Support Constitutional Functions


Our Constitution makes provision for a number of what are called Constitutional Posts, which guarantee to the occupiers of these posts constitutional protection in the sense that they benefit from some form of constitutional protection. This applies to, for example, the Director of Public Prosecutions, the Commissioner of Police, the Judiciary, the Director of Audit – such that the institutions they run (for the larger good of the country and the people) can be classified as independent. This means they can function without fear of favour, and take decisions that are in the national interest. They cannot be removed from office except by way of a special procedure as in the case of a judge or the Director of Public Prosecutions by virtue of section 89 of the Constitution.

However, obstacles may be put in the exercise of their function so that they are effectively prevented from fulfilling their duties as should be. This has been illustrated in the recent exchange in Parliament that took place following the PNQ of the Leader of the Opposition to the Prime Minister after the public release of the National Audit Office’s Annual Report. As we have come to get used to, it contained a litany of mis-governance examples cutting across all sectors of the public service which result in colossal waste of public funds. In the year 2020 which the Report covers, this was particularly critical because extra funding was required on an emergency basis for medical and health procurements because of the Covid pandemic.

In his reply to the PNQ the Prime Minister stated, regarding the inability for the National Audit Office (NAO) to consult certain documents in relation to the Safe City project, that the NAO should have sought advice from the Attorney General on the constitutionality or otherwise of ‘that’ decision by the police. It was in relation to an Agreement signed between the Mauritius Police Force and Mauritius Telecom which makes provision for a Mutual Nondisclosure Agreement.

This was about the ‘Safe City Project’, about which the director of the NAO states in his report that ‘… the contract for the “Safe City Project” for some Rs 16 billion was awarded directly to a private company on an operating lease model for a 20-year period. No evidence was produced to NAO to the effect that an assessment was made to ascertain the fairness of the lease payments made by the Police Service under the contract, and thus that the procurement was undertaken in the most economical manner.’ Furthermore, the NAO staff faced considerable difficulties to have access to procurement files from the Ministry of Health and Wellness (MOHW), which had been secured by ICAC for its enquiry.

We are thus in presence of what could be viewed as diversionary tactics being resorted to, all apparently en bonne et due forme, to prevent the director of NAO from obtaining all the information that he is required by law to provide to the country, so that the people can judge for themselves where taxpayer money is going.

This is not sensitive information having a security aspect, and we would grant that the holder of a constitutional post may need to consult with the Executive – effectively in our country this means the Prime Minister – where national security is concerned, especially in circumstances that may require crucial decisions that may have widespread social impacts such as law and order in the country.

But in no way can this apply where public funds are concerned, where complete transparency must not only prevail but be seen to prevail: that is, there must not be any attempt to prevent the NAO from gaining free access to any information that it deems is necessary.

In this respect, it would be useful to apply, as Milan Meetarbhan has observed in one of his interviews to this paper with reference to the Constitution, ‘over and above the text of the Constitution … 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.’

The NAO Report is, par excellence, the document whose focus is good governance and is eagerly awaited each year. Does it not deserve a good dose of constitutionalism for the sake of the country as a whole?

* Published in print edition on 2 April 2021

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