Democracy with a partisan judiciary?


Let’s for a moment imagine that a case involving the Mauritian Prime Minister comes up before the Supreme Court, and that it is known beforehand which judges are politically aligned with the Prime Minister. That could give rise to the perception that the political affinity of that particular judge would guarantee that the PM comes out a winner. Similarly, if a majority of judges were against him politically, he would never win a case in the Supreme Court. In other words, the PM and the country would know beforehand what would be the outcome of such a case in our Supreme Court.

Now, how would the population react? Definitely, people would be horrified, and this scenario would be deemed totally undemocratic and unacceptable. In other words, a democracy with a partisan judiciary would be a no-no here. And we are sure in many other jurisdictions too.

But not, it seems, in America. There, it is known which judge is a partisan of either the Republican or the Democratic party, and every presidential nominee is chosen on the basis of his known inclination towards one of these two camps. So it was with the latest appointment, that of Judge Brett Kavanaugh, despite the testimony of sexual harassment made against him by a victim to the Committee that was hearing his case. There were other allegations as well, along with known facts about his earlier behaviour which were made available to the Committee and which he did not deny.

But there were also his own responses to the Committee’s queries, many of which were considered to be incompatible with someone aspiring to become a Supreme Court judge. And yet at the end of the day, he was nominated, albeit by a very narrow margin of two votes only (50-48).

An Op-Ed in the New York Times two days ago states as follows: ‘Imagine an America,’ Ezra Klein writes in a new Vox piece, ‘where Republicans consistently win the presidency despite rarely winning the popular vote, where they control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned…’(italics added).

The Op-Ed goes on to say that democracy is in crisis in America. One could say that again! However, this is but one of the dysfunctional aspects of democracy. Unfortunately, as Winston Churchill, a British Prime Minster, is credited with saying, democracy is the least worse among political systems. No wonder it has dysfunctions… Which, alas, we are forced to live with.

* * *

Drug Trafficking in Mauritius
Prime Minister: ‘No retreat no surrender’

The following PNQ was addressed to the Prime Minister in the Parliament on Tuesday 16 Oct 18:

To ask the Honourable Prime Minister… 

Whether, in regard to the “Rampant/Explosive Proliferation of Psychoactive Substances” in Mauritius and Rodrigues, as noted at paragraph 2.16 of the Report of Commission of Inquiry on Drug Trafficking in Mauritius, he will state if he has discussed this state of affairs with the drug enforcement agencies and, if so, indicate the outcome thereof?’

In his concluding remarks to the PNQ, Hon Pravind Jugnauth said that ‘as long as I am Prime Minister, there will be no retreat no surrender, come what may’.

Bold words, and we can only hope that the actions being undertaken, lengthily provided in the reply to the PNQ, will achieve the defined objectives within their timelines – which should, given the gravity and urgency of the situation, be sooner rather than later.

The Prime Minister informed the House that ‘the issue of drugs forms part of my daily discussions with the Commissioner of Police and other drug Enforcement Agencies, and emphasis is always laid on additional effective measures that should be enforced to curb down proliferation of drugs and other illicit substances’.

He stressed ‘that many of the recommendations contained in the Report of the Commission of Inquiry had already been implemented either before the setting up of the Commission or during the period it was conducting its exercise’. Further on in his reply he gave some more details on this aspect, saying that the ‘Report of the Commission of Inquiry on Drug Trafficking contains some 460 recommendations. The Committee under the aegis of the office of the Secretary to Cabinet and Head of the Civil Service has held several working sessions with representatives of Ministries/Departments/Organisations concerned with a view to expediting the implementation of the recommendations contained in the Report.’

So far, he continued: a) around 80 recommendations have already been implemented, b) implementation is ongoing on some 120 other recommendations, and c) the full implementation of about 95 other recommendations would require either new legislative measures or amendment to existing legislation.

Further, ‘in regard to the remaining recommendations, consultations at the level of Ministries/Departments/Organisations are ongoing as their implementation requires in some cases (i) major policy decisions, (ii) a thorough study of the legal implications, (iii) concurrence of the Service Commissions, and (iv) a review of the existing organisation structures by the Pay Research Bureau, as well as the creation of new grades.

Earlier, he had given details of the various equipments that have been acquired by the different agencies that are involved in combating the drugs issue, and the various prevention programmes that are being implemented in the different sectors such as educational institutions and drug rehabilitation centres.

One point which has retained our particular attention in the reply is: ‘an assessment of the merits of the recommendations made in the Report as opposed to the prevailing arrangements which are considered to be adequate. In some cases, the implementation of the recommendations is not considered to be feasible or practical’ (italics added).

We appreciate that as part of procedure and due process government is entitled to consider what are referred to as the ‘merits of the recommendations’, whose ‘implementation… is not considered to be feasible or practical’. In order to remove any doubt in the population’s mind, it is imperative that more clarity is given as to why it is not feasible or practical to implement these recommendations. This would complete the reply of the PM, but could be done through the Government Information Services and not necessarily in Parliament.

Having gone thus far in the reply, we see no reason why this additional information should not be provided, especially as the PM emphasized that ‘we are addressing the issue holistically and not only through a repressive approach’.

* Published in print edition on 19 October 2018

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