“Investors vote with their feet when governments act with total disregard for what is right and wrong”

 Interview: Milan Meetarbhan

 ‘A future government will need a lot of time
to rebuild our institutions. But it will need to
have the individuals in positions of leadership
who have the competence, the commitment and
the integrity to do so’
Chagos: ‘A negotiated solution remains the
preferred option’

Milan Meetarbhan, constitutional lawyer, who has had wide experience at the level of the Prime Minister’s Office, in the financial sector as head of the FSC and then as UN Ambassador for Mauritius, when he defended the Chagos dossier. In light of an apparent conflict of interest between the Executive and the President, he gives his views about the functions of the President according to our Constitution, arguing in favour of a needed constitutional reform that would take into consideration the changed circumstances in the polity. He also comments on the Chagos issue following the statement issued by the FCO.

 

Mauritius Times: The latest talk of the town these days relates to the conflict that would have been brewing up between the President of the Republic and some members of Cabinet. Whatever the press is reporting or been leaked to it for good reasons about this matter might not inform us about what’s really at issue, since there appears to be more than style and ‘bilan présidentiel’ that explain the growing discomfort of those Cabinet members with the President. What’s your take on that?

Milan Meetarbhan: Indeed the information which has been selectively leaked by different parties may not in fact reveal what the real issue is. It could be purely political as the President was in fact the nominee of one of the smaller parties in what is known to be a factious government or it could be a clash of personalities.

In my view, and in the absence of any information as to what the real issue or issues are, the manner in which the role and functions of the President have evolved over the last year could objectively give rise to institutional tension between the political Executive and the President. In addition, at a time when the government is by all accounts very unpopular and perceived as ineffectual, a popular President who is portrayed by the media as a doer and as being quite innovative is bound to give rise to tensions of a different sort.

The President is a distinguished lady in her own right and was in the private sector before being appointed President. So I expect that she would want to get things done and must be frustrated with bureaucracy and protocol. The fact that she has not held public office before might have led her to commit some faux pas like when she publicly supported the so-called Integrity Bill thus prejudging what she would do when the Bill in its final form would come to her for assent.

But on the whole and leaving aside the serious constitutional issues relating to the exercise of her function for the moment , there is no doubt that her standing in the nation is higher than that of any member of the political Executive. It is therefore not surprising that this would give rise to internal squabbling.

* When Cassam Uteem was President there was an incident, almost verging on diplomatic embarrassment, during a speech which he made about foreign policy and which led the then American ambassador to walk out from the function. It appears that the current President’s initiative towards Pakistan would not have been to the liking of the government. Shouldn’t the President of the Republic have an opinion on such matters and be able to freely voice them out?

A country may either have a ceremonial President or an Executive one. In the first case the President does not decide on policy but can be a mouthpiece for the government which decides on national policy. Where you have an Executive President, it’s usually the other way round. The main decision maker is the President and Cabinet implements the policies determined by the Head of State.

In Mauritius we have a parliamentary system of government but the President, and previously the Governor General, has been given certain powers essentially because of the highly contentious debate in the 60s about the need for safeguards for so-called minorities. In these respects our Constitution is rather unique amongst similar Commonwealth countries, as the Constitutional Commissioner, Prof de Smith himself has pointed out.

We have had a debate over the years as to whether the President should have these powers and probably even wider powers as this would mean lesser powers concentrated in the hands of one person, namely the Prime Minister.

Whilst there are genuine concerns about a semi-presidential regime where power is shared between the President and the leader of the parliamentary majority, the real question at the end of the day is one of legitimacy. A Prime Minister derives his legitimacy from the people as he is the leader of a majority elected by the people. The President, on the other hand, is not elected by the people. Under our Constitution, the President is elected by the National assembly but only the Prime Minister and no one else can nominate a candidate. There is no debate on the PM’s proposal and given that a Prime Minister in our system of government has a parliamentary majority, his candidate will be formally approved by the Assembly.

Can or should a President have real powers or take up a more active role if he or she is for all intents and purposes only a nominee of the Prime Minster, even if the nomination has been formally ratified by the National assembly? Should any change in the role and functions of the President necessarily come about only with a change in the mode of election of the President?

Over the last year we have seen a creeping change in the role and functions of the President without any constitutional amendment. The perception of the role of the President in our constitutional regime seems to be undergoing a major change with the letter of the Constitution remaining intact. At a time when the country is in such a state of flux and there is so much jockeying for power going on, it is not surprising that this changing role of the Presidency would upset some people or some factions.

* But what if the President decides to go counter to the views of the government of the day on, for example, the handling of foreign affairs or other local issues and considers it is in the public interest to make his/her views known to the Mauritian people? How does a government deal with such a situation?

Well we all know what happened when President Uteem’s views on the terrorism bill were different from those of the political executive and of the legislature which had approved the bill proposed by the Executive. He had to resign. However if we have a President who has had experience of public affairs, the President can share with the Prime Minister during their weekly meetings his views or concerns on a proposed Bill or policy measure, and the Prime Minster can give due consideration to the views of the President. Our Constitution allows the President to send back a bill to Parliament for reconsideration or even invite the Cabinet to reconsider a decision.

* What is a President for in the Mauritian context anyway? Surely not limited to ribbon-cutting ceremonies, isn’t it?

After independence when the Queen remained as Head of State, the Governor General was the representative of the Head of State in Mauritius. When Mauritius became a republic in 1992, the President became Head of State and basically had all the powers which were previously conferred on the Governor General.

The President has, under the Constitution, powers which he is entitled to exercise in his own deliberate judgment. In practice and according to convention, the Governor General and later the President has irrespective of the nature of the power granted to him acted in accordance with the advice of the Prime Minster elected by the people.

However, there are occasions when during what the French call a cohabitation, i.e. where the President and the Prime Minister are not from the same party, the President has exercised his powers disregarding the advice given by the Prime Minister.

* There were at one time debates about the President of the Republic being thought to be the guardian of the Constitution? Is that indeed the case or would you be more comfortable with the Supreme Court sitting on such matters?

Section 28 of the Constitution does actually provide that the President shall uphold and defend the Constitution and that he will ensure that the institutions of democracy and the rule of law are protected, that fundamental rights of all are respected and that the unity of the diverse Mauritian nation is maintained and strengthened.

The jury is still out about whether Presidents have fulfilled these obligations or can do so and how the people can hold the President accountable with respect to this constitutional duty.

There are in particular serious questions as to whether the conduct of President Jugnauth just before his resignation was consistent with these constitutional obligations.

Of course ultimately it is the Supreme Court which has the last word on deciding what is or is not consistent with the Constitution. But notwithstanding the Supreme Court’s power as the ultimate arbiter, Section 28 of the Constitution cannot be devoid of any meaning.

* When the announcement was made by Sir Anerood Jugnauth about his son and Finance minister taking over from him following his yet-to-be confirmed intention to step down, the MMM opposition had called upon the President of the Republic to nominate “in her own deliberate judgement” whoever commands a majority in the House as Prime Minister, failing which she may go for the dissolution of Parliament. One would not expect the President to abstain from attending to an ‘affaire d’Etat’ of such importance with all the seriousness it warrants, isn’t it?

There should be no legal controversy about whether the President can appoint a new PM when the position is vacant. However where Anerood Jugnauth QC may have gone wrong is when he said “pena lot choix” but to appoint his son as leader of the largest party within the alliance as Prime Minister – meaning the President would have no choice but to endorse the MSM’s candidate. If that was so, then it’s Pravind Jugnauth who should have been appointed as PM in December 2014. That was not the case as the majority in the Assembly reckoned as the leader of their alliance someone other than the leader of any of the parties in that alliance. So theoretically the same thing could happen again and the majority could decide that someone other than the leader of the largest party should lead the alliance.

Having put the constitutional argument to rest, let us look at the political and ethical issues involved in this transition of power. The debate is clouded by the fact that the PM is relinquishing his post so that his son can take over as PM. Had it been someone other than the son, there would still have been questions about legitimacy, etc., but they would have been of a different order. If the immediate beneficiary of the PM’s deliberate decision to resign is his own son, then the PM is in effect anointing his son as Prime Minister.

What has also been troubling the nation is the confusion about whether there had been an agreement or an understanding between the alliance partners in 2014 that the PM would in fact relinquish the position in favour of his son at some point. Some of the partners have been at a loss to explain what happened. Whatever they say, they are damned. If they state that there was such an understanding, the question inevitably arises as to why this was concealed from voters. On the other hand, if there was no such understanding, they are not bound to crown the son and they might have been led to conclude an alliance based on misrepresentations.

* The view has been expressed recently that it might be opportune and necessary for Mauritius to revisit its Constitution. Tell us first of all what you think about the presidential regime that has been earlier introduced by the MMM-MSM government: does it sit well with our Westminster-based model?

I strongly believe that a democracy works best when it avoids concentration of power. I am aware of the risks of overlaps giving rise to instability and deadlock. But any constitutional regime must define allocation of power as clearly as possible. The French Constitution, in my view, has got it about right in terms of defining such allocation.

I first proposed the election of a President by universal suffrage in 1991 at a debate organised at the University of Mauritius just before the Bill establishing a Republic was introduced in Parliament in December 1991. The debate was chaired by late Madun Gujadhur and Paul Bérenger, then Minister in the MMM-MSM government, was a fellow panelist. Subsequently the Labour Party formally tabled an amendment in the course of the debates on the Republic bill, calling for the election of a President by universal suffrage.

The Labour-MMM alliance in 2014 had the required majority in Parliament not only to push through the constitutional amendment for what was called the “Deuxième République” but also to take the easy path for them and keep the provision that allows a new President to be elected by Parliament. Instead they decided to first obtain a mandate from the people before amending the Constitution and they also did the right thing by proposing that the President should be elected by universal suffrage.

It is unfortunate that the debate during the campaign, to the extent that there was not a proper debate at all, focused on personalities rather than on the fundamental issues involved in moving to a semi-presidential system – both the upside and the risks.

* What else might be necessary for review? Should we go back to the Prime Minister having the last word in relation to the dissolution of Parliament, the appointment of the Chief Justice and the Presidents of the PSC, etc?

The Prime Minister still has the last word in relation to dissolution of Parliament except when he has lost a motion of no confidence. It would be opportune that, on the occasion of the fiftieth 50th anniversary of our Independence, we have an expert assessment of how our Constitution has worked or not worked over these fifty years and what, if any, reforms could be considered to perfect our democracy.

* How are the checks and balances working presently under the Lepep government?

Our Judiciary remains the one solid bulwark against authoritarianism. It is one of the few institutions in which people still have trust. Unfortunately, however, some victims of arbitrary exercise of power are still at times left without a proper remedy. In India, judicial activism, especially during the days of the emergency, has sometimes been criticized but on the whole it has asserted greater and easier judicial control over other branches of government.

On the other hand I am concerned about an increasing trend towards something we see often in authoritarian regimes. If one questions the propriety of the son taking over as PM from the father, then one is told that this is legal and therefore can be done. If one expresses dismay at the manner in which Megh Pillay, one of the country’s ablest public sector managers, has been summarily dismissed, then again one is told that this was done in accordance with the law (even though in this case it is strongly disputed if this was indeed done in accordance with the law).

There are many other examples of purported legal justification for actions which are not politically and ethically correct and which can tarnish the image and reputation of the country. Everything done in the former Soviet bloc could be held to be in accordance with the laws then in force in these countries, but that did not make the actions right. There is more to a democracy than the letter of the law. One would not expect the Judiciary, however progressive and active role it takes, to provide a remedy in all cases when this would be in the teeth of the law on the statute book. In a democracy, all that is not specifically prohibited by law is not necessarily right.

The treatment meted out to Megh Pillay, irrespective of what the courts ultimately decide on the legality of the decision, has done and will do a lot of harm to the country specially in the wake of the cavalier manner in which the authorities dealt with the likes of BAI and Betamax. Investors vote with their feet when governments act with such total disregard for what is right and wrong.

* We seem to see the same pattern follow on as governments change: the renewed pledges for transparency, meritocracy and competence soon give way to the old habits of dishing favours to selected lobbies, anointing cronies, relatives, political sponsors and agents… There does not appear that there is much we can do to make governments – as well as political parties – accountable. How do we change that?

Building institutions takes time but running them down takes less time. Confidence in some institutions has been shaken to the core recently. A future government will need a lot of time to rebuild our institutions. But it will not only need time and more than new laws and systems, it will need to have the individuals in positions of leadership who have the competence, the commitment and the integrity to do so. Voters will have to make sure that mainstream parties show respect for them by getting people who meet these requirements when nominating candidates for elections but and also at various positions after they get elected.

* A last one – on the Chagos issue: the Chagossians will not be allowed to resettle in the Chagos Archipelago, and the US presence there under current arrangements with the UK will continue until 2036. What will the referral to the International Court of Justice achieve at the end of the day?

We had been told that there was some kind of agreement between the parties that Mauritius would not call for a debate at the General Assembly before June 2017 to give the parties time to find a negotiated settlement. Now if any of the parties will start by making and announcing unilateral decisions, it will not only be acting in bad faith but it would be showing absolute contempt for the agreed process.

The referral to the ICJ will be only for an advisory opinion at the request of the UN General Assembly. Mauritius will first have to obtain the support for this General Assembly resolution. The decisions announced last week by the UK, the uncertainties in the US with the election of a new President who may take a hawkish line on global issues mean that our lobbying efforts to get support for the resolution will have to be intensified. But, at the end of the day, a negotiated solution remains the preferred option.

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