* “Eight years for the drafting, but only a week for MPs and the public to consider the Financial Crimes Commission Bill…
Interview: Milan Meetarbhan
… is it a reaction to polling which suggests that the regime is losing ground and that it needs a new strategy to bring down its opponents?”
* “The MSM never shares power”
‘Anyone with independence of mind is a thorn in the flesh for an autocratic regime’
* Electoral Petitions: ‘No judicial inquiry has been held over the conduct of the last elections to determine whether the elections were free, fair and credible’
Why is the Financial Crimes Commission being currently rushed through Parliament at this point in time when we are already in an election year and Parliament will be officially dissolved in November 2024? What are the real motives of the government for putting a political appointee at the head of the FCC, an appointment which would circumvent the Constitution by a simple legislation, and with powers that would allow the holder of the post to put an end to investigations, for instance in a case involving a political figure of the same political hue as those in power, and close the file without the Office of the DPP being involved at all? Constitutional lawyer Milan Meetarbhan shares in this week’s interview his views on the highly contentious Financial Crimes Commission, as well as on the requirement for mobile users to re-register their SIM cards which, besides the issue of the constitutionality of this exercise, given rise to apprehensions as to the use that might be made of the data that would be collected and apparently be checked against a database which has officially ceased to exist… Read on:
Mauritius Times: ‘Why now?’ That’s the question that crops up in light of the government’s strong push to bring both the Financial Crimes Commission Bill and the report of the Electoral Boundaries Commission for a vote at this point in time. The latter was tabled in the National Assembly three years back, that is on 3 November 2020, and the former – admittedly a much-needed legislation to fight corruption and fraud – is coming up in the last year of the government’s mandate. What’s your take on the timing of the government’s decision?
Milan Meetarbhan: We are already in an election year as the National Assembly will automatically be dissolved in November 2024. It could even be dissolved earlier. Every move and every statement by the regime will, given its flagrant political and partisan agenda be interpreted in the light of what advantage this brings to the government or what harm it does or is likely to cause to its opponents.
It took eight years for the government to work on the FCC Bill but still the government deemed it necessary to come to the Assembly with a certificate of urgency. The Bill is being debated in the Assembly only one week after it was first introduced. Eight years for the drafting, but only a week for MPs and the public to consider the wide range of provisions of the Bill.
Is there a deliberate and calculated move by the regime to get the highly controversial bill through now, just after it announced huge salary increases and just before the festive season? Or is it a reaction to polling which suggests that the regime is losing ground and that it needs a new strategy to bring down its opponents?
* Let’s first consider the Report of the Electoral Boundaries Commission, which is mandated by the Constitution to present a report every 10 years, and the recommendations of which shall have effect as from the next dissolution of Parliament. Beyond the timing of this legislative proposal and the criticisms of gerrymandering levelled by the Opposition, isn’t it true that there is no magic formula for obtaining a consensus on any alterations to the constituency boundaries?
Over and above the criticisms of gerrymandering by the opposition, it is wrong that an incumbent government seeks by the sole will of its own MPs to change the rules of the game in an election year.
Irrespective of the merits or otherwise of the recommendations of the Electoral Boundaries Commission, it is unethical and absolutely wrong that the changes should be introduced after parties have already started getting organised for the next elections on the basis of existing constituency boundaries.
There is no magic formula for obtaining a consensus other than a government with democratic instincts which appoints a boundaries commission which has the confidence of all parties, and which comes up with recommendations that will be supported by MPs on both sides of the aisle.
The boundary changes should not be made on the recommendations of nominees of the ruling party who may also be perceived as being partisan and then approved only by the parliamentary majority of that same party.
* There may however be a point as regards the failure of the Electoral Boundaries Commission, past and present, to submit recommendations for alterations to the boundaries of the constituencies “so that the number of inhabitants of each constituency is as nearly equal as is reasonably practicable to the population quota,” as prescribed by the Constitution. What are your views on this issue?
I have dealt with this issue extensively in my book on constitutional law. There is no doubt that the constituency boundaries as they exist since independence do not conform to the basic principles laid down in the constitution.
However, we know the historical reasons why this was done initially, and the question today is whether those reasons are still valid. The new boundaries being proposed for reasons which are not always very clear do not change the fact that some constituencies have up to three times more voters than others, yet they all elect three MPs each.
* As regards the Financial Crimes Commission, the Opposition has come out strongly against its provisions. What is your view on the concerns being expressed?
There are two distinct issues in this debate. One is the need to reinforce the legal provisions regarding fraud and corruption. I believe there is a national consensus on the need for this, especially in view of recent trends on an unprecedented scale. There would also be a consensus on the fact that even if the present legal framework were to remain the same, the provisions regarding independence and accountability of existing institutions need to be revisited.
The other debate is about what is being proposed in the present FCC Bill. I repeat that these are two distinct debates. There is consensus on the need to enhance the legal framework, but there is no consensus on the institutional framework and the powers being proposed. No amount of spin to mix issues and accuse those who are critical of the proposed bill of being opposed to enhancing the legal framework because they have something to fear should dissuade professionals and analysts to air their legal concerns on the institutional framework and powers being proposed.
* Allegations of potential political spying have been levelled, the constitutionality of the proposals have been questioned… How do you assess the potential impact of the FCC Bill on constitutional principles and individual rights?
The powers being given to the Director General with respect to investigative techniques he may lawfully use have indeed fuelled concerns about what you call political spying. In particular, to what extent can these powers be abused or misused given the general decline of the independence of our institutions in recent years. Various international reports have described Mauritius as an “autocratising” state, as one where democracy and governance have taken a downward curve.
Other concerns have been expressed with regard to the very foundational philosophy of the Bill regarding the merger of different institutions and powers which should have been separate and independent of each other.
Over and above the “philosophical” issues is the one about personnel. Even with the best of laws, if the people who are to man institutions and exercise powers do not have the confidence of the nation as they are not perceived as being independent and impartial, the law will not inspire respect and trust. The promoters of the Bill have lost a golden opportunity to restore their credibility and show good faith over their purported crusade against corruption by proposing an appointment mechanism which would enable appointments to be made with bipartisan support.
* Public consultation or input from relevant stakeholders during the drafting process of the FCC Bill could have contributed to the effectiveness and legitimacy of the legislation. There has been none. Balancing effective law enforcement with the protection of civil liberties is crucial. Does the FCC Bill have safeguards to protect individuals’ rights during investigations and legal proceedings?
We do not know what are the private consultations that took place over the eight years that this bill was under preparation, but what we do know is that during this election year the government allowed only a week for people to study and make representations on the bill.
I fully agree that, as is the case for most constitutionally protected rights, a balance has to be struck at times between the public interest and individual rights. The use or abuse of powers given to a Director General may be subject to judicial challenges but the courts may take years to decide and in the meantime the persons concerned may suffer irreparable harm. This is why the principle that investigation and the decision to prosecute and conduct criminal proceedings have been so far with separate agencies.
* It has been argued that the proposal to provide the director-general of the FCC (a political appointee) with the powers to start and conduct investigations, but especially that of instituting prosecutions would constitute an attempt to circumvent the Constitution by a simple legislation. This argument can hardly be contested – possibly even in a court of law as well -, so the question really if why would the government nevertheless press on forcefully with this particular provision?
The answer to your question is obvious. The MSM never shares power. Power obtained by any means even through majorities of less than a hundred in constituencies where thousands of electors could not vote is absolute. Anyone or any institution showing professionalism and independence of mind is anathema to the view which is taken of what absolute power means for control freaks who abhor dissent. Anyone with independence of mind is a thorn in the flesh for an autocratic regime.
On a more technical and legal levels, we are being told by supporters of the bill that the new law will not in any way change anything with respect to the powers of the Director of Public Prosecutions (DPP). But lawyers have one simple question. The longstanding practice and law have been for reports to be sent to the DPP by the Police or ICAC after an investigation is completed. The final decision to prosecute or not to prosecute then lies with the DPP.
Let’s take the case of an investigation regarding a senior political figure. If the Director General of the FCC appointed in effect by the Prime minister decides not to prosecute, can the DPP still intervene and make the final call as has always been the case? If the answer to this question is NO, then there is a major change with respect to the powers of the DPP in spite of the assurances to the contrary being given by promoters of the bill. If the answer is NO, then a final decision not to prosecute will be taken by a political appointee who puts an end to the investigation and closes the file without the Office of the DPP being involved at all.
Let’s take the hypothetical case of a career-minded or politically-biased Director General who exercises his powers selectively and systematically decides not to prosecute persons of a certain political hue. This is why it’s important that the decision to prosecute or not to prosecute should rest with the ODPP.
* Tied up to the fear that the FCC would be empowered with the powers of surveillance and interception of our communications, the requirement for mobile users to re-register their SIM cards has, besides the issue of the constitutionality of this exercise, given rise to apprehensions as to the use that might be made of the data that would be collected. Could this also have a political objective, and would therefore be reprehensible?
You are absolutely right in raising this question. Indeed, any bill or any move must be seen in the context of the overall policymaking which consistently seeks to secure powers, more intrusive powers, and less accountability.
It is in this climate of suspicion and fear that the requirement of re-registering SIM cards has given rise to concerns about real motives. These have been reinforced when it has been officially announced that the credentials people will have to provide will apparently be checked against a database which has officially ceased to exist. Following a judicial decision, the authorities gave an assurance that the database had been deleted.
The question being asked is whether the regulations regarding the SIM cards in fact refer to the database that had been officially deleted or do they refer to some other database.
* In the run-up to the next elections, the recent judgement of the Privy Council in the electoral petition of Suren Dayal does not unfortunately provide much comfort to proponents of free and fair elections in view of more freebies that are likely to be distributed ahead of the polls. What are your comments on that judgement?
All court decisions over the electoral petitions are based exclusively on whether the petitioners have proved or not the specific allegations made against the specific individuals elected in the respective constituencies.
NO judicial inquiry has been held over the conduct of the last elections to determine whether the elections were free, fair and credible. There has been no independent judicial imprimatur on the fairness of the elections nationwide.
* It seems we are again being taken by a ride by the British government as regards Mauritius’ sovereignty over the Chagos Archipelago. The bogey about the Chinese interest in the Diego base looks crude, but it might have an impact on the Americans. What’s your take on the latest development regarding this contentious issue?
It would appear that there are lobbies with a colonial or imperialist agenda and mindset which are at work in both the US and the UK to derail the negotiation process – assuming that this process was initiated in the first instance in good faith.
These lobbies may represent only small groups with particular agendas of their own but they are so intent on the status quo that they could not find anything better than what you call the bogey about the Chinese. At a time when our defence, economic and other cooperation with India is greater than ever, these reactionary forces could not find anything better than to argue that Mauritius is an ally of the other power with competing interests in the region.
We still do not know whether the UK government has changed or is changing its negotiating posture in view of these lobbies. Everybody knows that if ever there is an agreement over Mauritian sovereignty on Chagos, this will only happen with the blessings of the US. However, this week, US Secretary of State Blinken again made the oft-repeated argument that the Chagos issue is a bilateral one between the UK and Mauritius. Scholarly literature is replete with studies of ingenious statecraft in international relations.
* * *
“The FCC Bill is being debated in the Assembly only one week after it was first introduced. Eight years for the drafting, but only a week for MPs and the public to consider the wide range of provisions of the Bill. Is there a deliberate and calculated move by the regime to get the highly controversial bill through now, just after it announced huge salary increases and just before the festive season? Or is it a reaction to polling which suggests that the regime is losing ground and that it needs a new strategy to bring down its opponents?”
* * *
“Over and above the criticisms of gerrymandering by the opposition, it is wrong that an incumbent government seeks by the sole will of its own MPs to change the rules of the game in an election year. Irrespective of the merits or otherwise of the recommendations of the Electoral Boundaries Commission, it is unethical and absolutely wrong that the changes should be introduced after parties have already started getting organised for the next elections on the basis of existing constituency boundaries…”
* * *
“The powers being given to the Director General with respect to investigative techniques he may lawfully use have indeed fuelled concerns about what you call political spying. In particular, to what extent can these powers be abused or misused given the general decline of the independence of our institutions in recent years. Various international reports have described Mauritius as an “autocratising” state, as one where democracy and governance have taken a downward curve…”
* * *
“As is the case for most constitutionally protected rights, a balance has to be struck at times between the public interest and individual rights. The use or abuse of powers given to a Director General may be subject to judicial challenges but the courts may take years to decide and in the meantime the persons concerned may suffer irreparable harm. This is why the principle that investigation and the decision to prosecute and conduct criminal proceedings have been so far with separate agencies…”
* * *
“Let’s take the case of an investigation regarding a senior political figure. If the Director General of the FCC appointed in effect by the Prime minister decides not to prosecute, can the DPP still intervene and make the final call as has always been the case? If the answer is NO, then a final decision not to prosecute will be taken by a political appointee who puts an end to the investigation and closes the file without the Office of the DPP being involved at all…”
* * *
“The requirement of re-registering SIM cards has given rise to concerns about real motives. These have been reinforced when it has been officially announced that the credentials people will have to provide will apparently be checked against a database which has officially ceased to exist. The question being asked is whether the regulations regarding the SIM cards in fact refer to the database that had been officially deleted or do they refer to some other database…”
* * *
“All court decisions over the electoral petitions are based exclusively on whether the petitioners have proved or not the specific allegations made against the specific individuals elected in the respective constituencies. NO judicial inquiry has been held over the conduct of the last elections to determine whether the elections were free, fair and credible. There has been no independent judicial imprimatur on the fairness of the elections nationwide…”
* * *
“ It would appear that there are lobbies with a colonial or imperialist agenda and mindset which are at work in both the US and the UK to derail the negotiation process – assuming that this process was initiated in the first instance in good faith. These lobbies may represent only small groups with particular agendas of their own but they are so intent on the status quo that they could not find anything better than what you call the bogey about the Chinese…”
Mauritius Times ePaper Friday 15 December 2023
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