Independence and Constitutional Reform
The formal process that led to the adoption of the Constitution of Mauritius started exactly on August 22, 1967, which means that we now have the benefit of almost half a century of constitutional practice and case law. It is therefore opportune, 55 years down the line, for us to review whether the guiding principles that went into the drafting of our Constitution are still valid or if there is a case today for a full-fledged review of our Constitution or whether it simply needs to be updated to reflect modern trends specially in the area of protection of fundamental rights.
In that context, we devoted a recent interview to the issue of constitutional reform. That coincided with a similar initiative spearheaded by Jack Bizlall and with support from jurists Milan Meetarbhan and Rajen Narsinghen, former ambassador Alain Laridon and historian Jocelyn Chan Low. There is still quite some way to go before concrete proposals will be put up for public debate, but that initiative needs the backing and participation of all those who have an interest in bettering and extending the scope of our present Constitution in view of what has been happening in recent years, which if left unchecked could lead to the fragilisation of our of constitutional democracy, the rule of law and good governance.
There is no argument about the fact that the harmony, relative peace as also progress that Mauritius has known during the past 55 years are in a large measure due to the fundamental guiding principles enshrined in our Constitution and the adherence by the different stakeholders to the values and respect for such principles as regards the rule of law and other constitutional protections like freedom of association, of religion, etc.
In support of these principles, the Constitution of Mauritius does provide for some form of protection to those officials operating in specific areas of public life/administration – law and order, justice, etc — with a view to empowering them to exercise their powers in the public interest, without fear or favour. Instances where these powers seem to be usurped by the Executive – such as a sitting Minister publicly threatening a politician and getting away with it -, or where those who are allowed to use them (for example the Commissioner of Police) failing to do so for fear of reprisal by the Executive may be examples of, as pointed out by Milan Meetarbhan in an earlier interview to this paper, ‘major areas where the empirical evidence of the last 55 years suggests that serious consideration must be given to perfecting our democracy.’
Areas where such ‘perfection of democracy’ may need to be looked at relate, among others, to the conduct and organisation of elections (with proper compilation and updates of electoral registers), their supervision, the hearing of election petitions by the Supreme Court as well as the resolution of complaints arising before and during polling. It does not make sense that unreturned candidates should be waiting for three or four years for their petitions to be determined when the next elections are almost round the corner.
We have also witnessed during the past recent years and in particular throughout the Covid pandemic, a number of outrageous aberrations happening in the procurement processes of government agencies because of arbitrary discretion exerted by those who are in a position to take or influence decisions. In most cases where questionable dealings are suspected, there are two common factors: a compliant bureaucracy and the absence of transparency. This is a practice that successive governments have been bequeathing to each other for a long enough time without redressing the situation.
The St Louis Gate scandal might not have surfaced at all, if it had not been for the African Development Bank’s communiqué published in June 2020, wherein its Office of Integrity and Anti-Corruption concluded that Burmeister & Wain Scandinavian Contractor (BWSC) had financially rewarded members of the Mauritian administration and others, for providing access to confidential tender-related information. It is unfortunate that the anti-corruption agency, ICAC, has not in this case demonstrated the same zeal that is going into its current investigation of the Franklin affair.
Scandals usually come to the surface following whistleblower tip-offs – which in the case of the St Louis project led to the investigation by BWSC into allegations of misconduct. Potential scandals would otherwise be swept under the carpet, and the public kept in the dark. For a long time, we have been promised a Freedom of Information Act, which could have acted as an important deterrent against abuse. Why is it not materialising?
On the other hand, in its present form and content it does not appear that the Constitution provides the possibility and the right to any concerned citizen – unless the latter can demonstrate his locus standi in the matter – to question the application of the law, or unjust administrative action. There is a case here for the establishment of a specialised Constitutional Bench, as suggested by M. Meetarbhan, so that ‘our compatriots can seek constitutional redress in a wider range of cases than the present relatively restrictive rules would allow them to do.’
As we reflect on those failures that have allowed our democracy to flounder and wilt, while ingrained Constitutional checks and balances have failed to play their role, we cannot ignore the repeated attempts of political authorities to browbeat political opponents, the free media and even the social media networks over the past ten years. Even the constitutionally independent DPP Office was not spared relentless attacks on its independence. We may not all agree with the rating of our democracy by the Swedish agency V-Dem, which has downgraded and lumped us to the levels of Salvador, Afghanistan or Poland, but clearly this is no rejoicing matter as we look back over whatever happened to the former poster boy of sub-Saharan Africa.
Fifty-five years after independence, and after numerous twiddles along the way, there is no doubt there is considerable accumulated experience of what is no longer acceptable in a modern democratic state. It is time for experienced observers, NGOs, legal and constitutional minds, and our body politic within or outside Parliament, create the think-tank or platform for a Constitutional renewal the population seems to aspire to.
Mauritius Times ePaper Friday 10 March 2023
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