Interview: Milan Meetarbhan
* ‘The Privy Council held that the DPP is amenable to judicial review by the Supreme Court. If this is so, why should not ICAC or the Speaker for that matter, also be subject to supervision by the courts?’
* ‘What has happened over the last four years in the US shows how fragile democracy can actually be. All nations have to be vigilant about any drift away from democracy to autocratic rule’
Milan Meetarbhan, a lawyer and former diplomat, calls for an early trial in current defamation cases for allegations to be proved or disproved by the Supreme Court and for broader judicial control of various institutions. Looking at challenges faced by US democracy in recent years, he warns against the drift to authoritarianism in smaller states. The former Ambassador to the UN urges greater cooperation between coastal States of the Indian Ocean. Read on.
Mauritius Times: The Angus Road saga involving allegations against PravindJugnauth is getting foggier for some, and nastier for others. The press is clearly after the skin of PravindJugnauth, but the latter does not appear willing, for whatever reason, to lay bare all the facts of the matter at this stage. What does all this mean to you?
Milan Meetarbhan: I do not believe that the press is after PJ’s skin. Scrutiny of the propriety of conduct of a person holding a high public office with regard to acts or omissions relating to the law or public affairs is legitimate. It is also legitimate for the media, the politicians, the forces vives and the public at large to ask questions regarding the conduct by a public body of an investigation which started at least seven years ago.
This matter is about potential persistent breaches of the law and is not about who a Prime minister danced the sega with at a private party. Even in the latter case the Supreme Court found that the press should not be gagged!
The avalanche of legal proceedings initiated in recent months is reminiscent of what happened in 2015 except that what’s happening now is before the civil and not criminal courts.
I believe that it is in the interest of the person who claims that he has been defamed and in the interest of the country that serious allegations be proved or disproved before a court of law at the earliest. I therefore hope that the parties to these civil cases ensure that there is no protracted exchange of pleadings and avoid preliminary issues and seek an early trial on the merits.
I am sure that the Plaintiff would be only too happy for his reputation to be buttressed by the court as early as possible. The best route for him to be vindicated is for an early trial in all the cases he has now filed and the ones he’s announced he will be filing.
* But if the public looks up to the media for doing its job of protecting public interest by doing investigative journalism and bringing to light matters which reek of corruption, fraud, etc., it is not expected however to substitute itself as some form of popular tribunal which would amount to a trial by the press. What do you think?
Yes, absolutely. The media brings up the facts and informs public opinion. Often this is what leads the investigative agencies to do their job and prosecute offenders, specially the well-connected ones.
In some countries the media may sometimes get it wrong through negligence, error in good faith or through deliberate fake news of which we have a seen a lot in the USA recently. Here we have both the media and the elected representatives of the people disclosing evidence which may suggest possible criminal offences. The evidence has been challenged. The courts may indeed find that there is no conclusive evidence of criminal conduct. But the media and the parliamentarians would still have fulfilled their duty in raising the right questions based on what they honestly perceived as facts which warranted public scrutiny.
Investigative journalism by professionals is not trial by the press. It’s not always a partisan witch hunt either, even if those who fear its outcome the most may portray it as such. There may be party hacks or hired guns embedded in some parts of the media but not all investigative journalism is partisan. There are also journalists who act professionally.
Whitewashing and defensive or offensive propaganda by public funded media with statutory duties are the other side of the coin. It could be more reprehensible because it’s a gross abuse of public funds and a flagrant breach of obligations imposed by law.
When we talk of the role of the media, we must distinguish between the harm which can be caused by the private media and that inflicted by public funded media established by law which either play offence or defence for purely partisan ends.
* Whether we like it or not, all the bad publicity around this matter does not speak well for the reputation of Mauritius since it is no other than the country’s Prime Minister that’s being accused of various offences still under investigation by the anti-corruption agency since many years now. Do you think ICAC could have spared the country of this unnecessary embarrassment?
Opinion polls tend to confirm that people are losing trust in institutions. People feel that those institutions they fund and to which they entrusted certain duties are failing them.
Failure by an anti-corruption agency or a law enforcement agency to prosecute some people whilst persecuting and prosecuting others leads to a serious breach of trust.
That ICAC should have been investigating possible offences for seven years before interviewing the main person involved may give rise to concerns. To make matters worse, the person concerned states that he was never called by ICAC but he asked to be interviewed.
The fact that, according to press reports, a new government immediately on taking office should write to foreign authorities to cancel a request for mutual legal assistance involving one of the new ministers may also give rise to concerns. The government did this whilst at the same time seeking legal mutual assistance in connection with investigations regarding the conduct of the outgoing Prime Minister and even sending its Attorney General all the way to Rome only to file papers before an Italian judge
* Speaking of ICAC,is there a problem therefore with the oversight such and other institutions that are deemed by virtue of the related legislations/constitutional prerogatives to function independently of political proximity?
The Privy Council held that the Director of Public Prosecutions, who is appointed under the Constitution and whose discretionary powers are conferred by the Constitution, is amenable to judicial review by the Supreme Court. If this is so, why should not ICAC or the Speaker for that matter, also be subject to supervision by the courts?
In the case of ICAC, it is supposed to be overseen by a parliamentary committee. Not only are the oversight powers clearly limited but the committee is composed of a majority of members from the government of the day. Parliamentary scrutiny of institutions expected to act independently is an important tool but can only be effective if the Select Committee is not controlled by the government of the day but be modelled on the Public Accounts Committee.
* Things are not any better at the level of Parliament as well, judging from the recurrent complaints of the opposition about the way the Speaker chairs the debates in the National Assembly. What’s your take on that?
Each time when we think we have seen it all, it only gets worse. What’s happening in Parliament is incredible. I am not sure however that we should focus so much on the Speaker himself. He is part of and a product of a culture. I’m afraid we can’t see the wood from the trees right now.
When the likes of Obeegadoo and Ganoo defend the conduct of parliamentary proceedings tooth and nail, they are defending a political system of which they are now part of.Veterans who spent a lifetime attacking the system join hands with the supposedly new kids on the block in upholding a system which ultimately rests on fealty rather than anything else.
As a general rule, no power should be unfettered. All powers even if expressly conferred by law should be exercised fairly, reasonably and in accordance with rules of natural justice and not arbitrarily. And whether the power has been so used or not, whether there has been a misuse or abuse of the power should be judicially reviewable.
In any parliamentary democracy, if there is tyranny by the majority held by the Executive in Parliament, there must be a judicial recourse. Let us take a hypothetical case. A parliamentarian asks embarrassing questions about the majority leader. The leader’s fellow members first seek to prevent the questioning with a barrage of points of order citing chapter and verse each time with the Standing Orders at the ready.
Then the member asking the questions is “named” by the person presiding who is himself a nominee of the majority leader. The same majority leader then moves for suspension of the member asking the embarrassing questions from future sittings so that no questions are asked. The majority leader’s motion to suspend the questioner is formally approved by the leader’s majority and there are no more questions for the next few weeks.
This scenario is purely hypothetical, but if it actually happens what is the recourse?
In a democracy, when the political class cannot set things right, it’s only the judiciary that can right certain wrongs until the people have a say and make an informed decision.
* Does it all mean that in the present constitutional setup, any government with a comfortable majority can consolidate its control over the political system and key institutions of the country and lock out the whole system from the prying eyes of the public and the opposition?
We do not always realise to what extent, even in advanced democracies, it is the character and values of individuals holding office which make a difference and not only the legal and constitutional safeguards. The same laws and the same constitution work differently with different people at the helm.
A Speaker, for example, may be elected and hold the same legal powers as another one, but the respect and trust enjoyed by one may differ from the way the other one is treated. The same applies to a President or a Prime Minister.
* On the other hand, we have had the village council elections last month. We have seen new faces armed with much less resources than the main “traditional parties” in the field doing things differently and reasonably well in terms of electoral performance. Did you see in all that a desire to stand out from the petty politics of our political parties?
Indeed, at the grassroots level there may be some, but not all, who may genuinely want to serve differently. This is true at village council level. However, once elected, the pressures are such that what ultimately comes out of the process leading to the election of heads of district councils is very different from what was seen at grassroots level.
To that extent, municipal elections are relatively more transparent. Even if a Mayor is handpicked by party bosses, the town will still be administered by the party which got the votes of a majority of the townspeople at the elections. This is not always the case at district council level.
The politicking, the maneuverings, at times the horse trading start after the village council elections.
* Were these elections, according to you, also a test of popularity for either the government or the opposition?
I believe that all elections are to some extent an opportunity to express discontent against a ruling party whether at national or local level. However, village council elections have traditionally also been an opportunity for local people to canvass local issues and bank on local connections to get elected.
Village and district council elections have always seen an attempt by the government of the day to deploy all the paraphernalia of office to cajole voters. Voter attitude at municipal elections is rather different. Party affiliations play a greater role though a vote against the government of the day also play an important part.
* In the US, Donald Trump has finally conceded, but that was not without the many legal challenges he had his lawyers put forward to retain his presidency. Are there lessons for the rest of the world including Mauritius from these elections and the legal challenges of President Trump?
Trump has not actually conceded yet and may not ever do so. He will keep telling his supporters that the election was stolen from them. He cannot lose except if the election is rigged. As he keeps the momentum on his campaign, denigrating the electoral machinery of the country of which he is President, he collects nearly 200 million dollars from donors for this campaign.
What has happened over the last four years in the US, considered the world’s second largest democracy (after India) and often cited as a beacon of an advanced democracy, shows how fragile democracy can actually be. If this can happen to a country like the US, how vulnerable other small states can be? All nations have to be vigilant about any drift away from democracy to autocratic rule. It takes decades to build a democratic society, but everything can be lost faster than we think. Once you lose it, you will take several decades to build it again.
* In a comment on the legal challenges of President Trump, Steven Mulroy Law Professor in Constitutional Law at the University of Memphis states that ‘there seems to be a real disconnect between the claims of widespread fraud, a stolen election and illegal voting made by President Donald Trump… and the actual claims formally made by his lawyers in court’. He concludes by saying: ‘The lawyers are going to have to present actual evidence to judges. Without such evidence, judges will dismiss the claim.’ The same test will sure apply here as well when it comes to the legal challenges of the 2019 elections, isn’t it?
Yes, of course, impartial judges can only act on the basis of evidence adduced before them. Trump has not offered such evidence yet but still manages to enlist the support of his followers who are convinced that the election was rigged. In the electoral petitions before our Supreme Court, the petitioners have averred several irregularities which they will have to prove. In some cases, the petitioners are asking for a recount and the grounds on which this can be obtained may be of a different nature.
When it is argued that an election was not free and fair, there is a lot which is public and widely known like abuse of state machinery or propaganda on state media but there may be other evidence which is specific to a constituency, like electoral bribes. The present legal framework for challenging elections dates back to the 50s and the modern trend is for a global assessment of how credible elections were and not limit legal challenges to unfair practices at micro-level.
* What is the significance of Seychelles’ President WavelRamkalawan official visit to Mauritius?
I am a great believer in regional cooperation. Small States in particular have to pool resources to manage issues of common interest. Managing ocean resources, for example, is a great example of the need for regional cooperation. The agreement between the Seychelles and Mauritius in 2012 on joint management of the continental shelf in the Mascarene Plateau was hailed by the United Nations as a good example of regional cooperation. Both Seychelles and Mauritius can work together in many areas and learn from each other’s strengths in other areas. We all welcome President Ramkalawan’s decision to come to Mauritius for his first official visit overseas.
However much we are delighted by the visit of the President, I believe it unfortunate that our country should cancel a sitting of its Parliament because of a visitor from overseas. Any pretext – whether it’s a mass at St Louis Cathedral or the PM being abroad or a foreign guest visiting Mauritius – is now good enough for ensuring that Parliament does not sit on a Tuesday.
We all remember from our childhood days reading about Pinocchio who wished that every day was a Wednesday as there is no school on that day of the week. Here some seem to wish that Tuesdays were wiped out of the calendar.
* Before flying to Mauritius President Ramkalawan received Indian External Affairs Minister S. Jaishankar in Seychelles, at a time when India is trying ‘to expand its footprint in the strategically-key region in the Indian Ocean’, according to a report by ‘Business Today’. Do you see President Ramkalawan pursuing a more pragmatic (‘Seychelles First’ policy) than his predecessors and even what the political leadership has been doing here and that might serve his country better?
When in opposition,MrRamkalawan’s party had expressed reservations about facilities granted to India by the previous Seychelles government. Whether President Ramkalawan will maintain the same position now that he is in power is yet to be seen.
Seychelles’ geostrategic position attracts a lot of interest, and consultations between the Mauritian and Seychelles governments on regional matters could be beneficial to both States and to the region as a whole. India is an Indian Ocean state with a huge coastline on the ocean. Its interests are therefore different in nature from those of States outside the region.
* The power game in the Indian Ocean involving the great powers of the world and other emerging ones is the new geopolitical reality that is largely beyond our control, but one we must reckon with as it impacts our own security and economy. How is Mauritius doing on that front?
The Indian Ocean has, as many analysts foresaw, acquired greater geostrategic importance in recent years. Coastal States have put in place an Indian Ocean Rim organisation which has had variable success so far. But the framework is there and can be built upon.
Indian Ocean coastal states must overcome their ideological and policy differences to have greater cooperation in areas like trade, ocean management, security and also promote more exchanges between their peoples and institutions.
The bigger countries in the region like India, South Africa and Australia (once it resolves that it will commit itself to being and acting as an Indian Ocean state) have other more global interests. All three are members of G20 and two of them aspire to permanent seats on the UN Security Council. The active involvement of these States in regional arrangements should be seen as a force for good.
Today, increasingly, the discourse is about the Indo-Pacific region. This changes the picture radically. I have just been reading an interview of Indian Minister of External Affairs, S. Jaishankar in which he says, “My sense is that when it comes to the Indo-Pacific, there is the recognition today that you cannot deal with the Indian Ocean and the Pacific Ocean as separate watertight theatres.”
Coastal states of the Indian Ocean will have to take this on board when reviewing their international and regional relations.
* Published in print edition on 1 December 2020