The online interview given by Paul Berenger to ION news on 17 November 2014 deserves full attention. Credit goes to Rabin Bhujun for raising issues in a competent manner and challenging Berenger on some of his answers which, at best, were contradictory, if not evasive. A link to the interview is to be found at the following address:
A few issues arise out of this interview and we shall take up the most pertinent ones, namely:
(a) an unwarranted attack on the Director of Public Prosecutions (DPP) and his Office (ODPP); and
(b) threatening comments on the future of Dan Callikan, Director General of the Mauritius Broadcasting Corporation.
The attack on the DPP arises out of an article in the ODPP newsletter which sets out a hypothetical situation where the President of the Republic shoots the Prime Minister and the issue of presidential immunity is considered from an academic point of view but more importantly from a governance perspective. Democrats would have no quarrel with such an article which is no doubt provocative, but which is certainly not wrong in law or wrong in raising pertinent issues of accountability and governance associated with the highest office of the land.
However, Paul Berenger finds fault with the conduct of the DPP and also adds that he has been watching his ‘exploits’ very closely for some time. Should he have any such qualms, he would have been well advised, as former Leader of the Opposition (he certainly has unparalleled experience in the Constitutional post some would say), to raise the matter with the President of the Republic and if there has indeed been misconduct by the DPP, there are constitutional mechanisms for launching procedures to enquire into such misconduct and provisions for removal are also prescribed.
The self-proclaimed Constitutional expert that Paul Berenger is could not have missed provisions of our Constitution but rather than going about the alleged misconduct of the DPP through the prescribed mechanism, he chose to enter into mudslinging. In this interview he flatters the President but with his attack on the DPP, he makes a thinly veiled attack on the President as he has shown a complete mistrust of the President to handle any complaint concerning the DPP. Is the President not to be trusted by Berenger when it comes to complaints about the DPP? Berenger owes it to the population to explain why he did not choose to complain officially to the President but instead launched a public attack on the DPP, who he knows would not be able to reply, being respectful of institutions.
The timing of the attack on the DPP, as rightly pointed out by Rabin Bhujun, follows a decision to appeal against the stay of proceedings against Ajay Guness. Let it be clear that the Court has not yet cleared Ajay Guness, but Paul Berenger fields him as a candidate for the forthcoming elections! Is there a political motivation behind the attack – the more so as Berenger has himself stated that the 2010 elections could have been lost by the wrongful charge that was laid against Ajay Guness?
Section 72(6) of our Constitution provides that –
“In the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.”
The reaction of the former Leader of the Opposition to the DPP’s article in relation to presidential immunity, as reported by the written press and in particular from the ION interview, would suggest that this particular section of the Constitution might be revisited and that this country’s democratic record might fall prey to some form of totalitarianism. Do we wish our institutions to be completely emasculated?
Interestingly, Paul Berenger mentions that in 1982, the Constitution was amended to ensure that elections could not be postponed – as provided in section 57(2) of the Constitution which reads:
“(2) Parliament, unless sooner dissolved, shall continue for 5 years from the date of the first sitting of the Assembly after any general election and shall then stand dissolved.”
This provision was indeed a great step forward for Mauritian democracy but what Paul Berenger seems to conveniently forget is that his 60-0 government emasculated the Civil Service by an amendment which ensured that top Civil Servants could be requested to vacate their office following a general election. It is not known if he would indeed wish to extend the hand of the law through another Constitutional amendment so as to empower his regime to get the DPP to vacate his office after the next general elections.
The amended provisions which are now sections 117(4) and (5) of our Constitution reads as follows: The posts concerned include those of Ambassadors, Permanent Secretaries and supervising officers (the crème de le crème of the Civil service):
“113(4) Where under any law other than this Constitution, an appointment is made to an office by the Prime Minister, the Deputy Prime Minister, or any other Minister or on his advice or after consultation with him, or with his approval, the holder of the office may, notwithstanding any provision to the contrary in this Constitution, be required to vacate the office at any time after a general election held after the appointment.
(5) Where an appointment is terminated under subsection (3) (b) or (4), no compensation shall be payable to the holder for loss of office by reason of the termination of his appointment, other than such compensation as may be prescribed under the Labour Act and he shall not be entitled to any other damages or compensation under any other law whatsoever.”
The above amendments meant that top civil servants like Herve Duval, Kanta Banymandhub, to name a few, were discarded by the MMM after the elections. For those wishing to ‘approfondir la démocratie’, this dark episode of our history is not to be forgotten. Those top civil servants who are still around today and who lived through this tyranny owe it to the younger generation to come out in public and inform our citizens of the dangers which lie ahead.
Current top civil servants also owe it to themselves and their juniors to seek reassurances from our political leaders of all parties. Maybe a pledge could be made by our political parties to repeal the above amendments and to restore the independence and security of tenure of our top civil servants who deserve no less than this.
Seeing the list of casualties of former Ministers of Labour who were on Berenger’s hit list, our civil servants will be small fry when it comes to dispatching them unceremoniously after the general elections! And they do know that an emasculated Labour Party, or rather, what is left of it, will do very little to spare them! Sir Anerood Jugnauth is not known for his patience and tolerance towards civil servants but if he could come up with a pledge to repeal the above provisions of our Constitution, he will go a long way towards reassuring our top brass of the civil service.
Have we heard the Prime Minister defend the DPP? If so, he must have done it very discreetly so as not to infuriate the one calling the shots these days — even before he assumes office!
In relation to Dan Callikan, appointed by the Prime Minister for 3 years barely two months back, Paul Berenger said in his ION news interview that it takes 3-5 minutes to undo a contract! How respectful of the prerogatives of his good friend Navin! Again the latter has remained silent much to the despair of the Labour electorate.
What has not been said can sometimes be more significant than what has been said. Do we have the guarantee from Labour that the Berenger/Sithanen tandem will not ask for the head of Governor Bheenick, one of the few true Labour stalwarts left in this country? We know that in Cabinet, Bheenick was a formidable opponent of Berenger and that recently he has been a formidable barrier against savage devaluations of our rupee so desired by our private sector. Thus, our purchasing power has been spared and we are still getting some returns on savings.
* Published in print edition on 21 November 2014