Constitutional crisis looms ahead

By JS Narain

Section 28 of the Constitution provides that the President has the duty, a mandatory one, to uphold and defend the Constitution and ensure that the institutions of democracy and the rule of law are protected.

 It is the President, who after consultation with the Prime Minister, the Leader of Opposition and such other leaders of parties and acting in his own deliberate judgment, appoints the Electoral Supervisory and Boundaries Commission. The Electoral Commissioner also enjoys the same independent process as the members of the Electoral Supervisory and Boundaries Commission save that his appointment is made by the Judicial & Legal Service Commission.

Section 1 of the Constitution provides that Mauritius shall be a sovereign and democratic state, and in the next section it goes on to say that the Constitution is the supreme law of Mauritius and if any other law is inconsistent with this Constitution, that other law, shall, to the extent of the inconsistency be void.

I was relieved this morning to find that the Electoral Commissioner’s Office had come out publicly and assumed its constitutional role by issuing a communiqué which firmly dispelled any suspicion of malfeasance on its part when it received on 8 June 2011 a request from the Ministry of Local Government and Outer Islands making proposals for the delimitation of new boundaries for the five Municipal Councils and their Wards, Villages and District Councils in the context of a new Local Government bill which had to be introduced in the National Assembly.

It is of utmost importance what the communiqué states. Officers of the Electoral Commissioner’s Office (ECO) were dispatched to conduct site visits and to consider the propriety of the proposals made by the Ministry. In fact the ECO took into account a number of factors such as the number of electors per ward, geographical and topographical features, means of communication, the boundaries of administrative areas, availability of suitable polling stations, etc., and made proposals of its own.

After having altered the initial proposals of the Ministry, it referred the amended proposals to the Electoral Supervisory and Boundaries Commission — a step, which to all intents and purposes, was conducive to sound administrative action.

The communiqué ends by stating that all its proposals were endorsed by the Ministry, as was reflected in the First and Second Schedules to the Local Government Act 2011.

The Bill, as we know, was enacted by the National Assembly and assented to by the President. This democratic exercise is explained by the fact that members of the National Assembly are elected representatives of the people of Mauritius and more importantly the Minister who, of course, represents the majority party and fulfills its mandate, is answerable to the National Assembly. This process goes to the very root of our constitutional democracy.

The first inference that can be drawn from the communiqué of the ECO is that the boundaries are those of the ECO since they have altered the initial proposals of the Ministry. Second, the proposals were endorsed by the Electoral Supervisory and Boundaries Commission – an independent body to all intents and purposes. I therefore fail to understand the demarches of the presidency which appears to question a democratic process by the institutions of this country.

There is of course a power vested in the President to ask for a review of the boundaries, but that power must be exercised lawfully and rationally. Unless there are issues arising “de novo” and which had escaped the attention of Parliament, and I use the term advisedly, I cannot see how the President can put into question the sovereign will of an elected assembly.

Besides, the exercise of the power vested in the President by the Local Government Act should, as rightly pointed out by the Attorney General, be exercised subject to section 64(1) of the Constitution. There is no express mention under section 9 of the Act that the President should exercise his powers acting in his own deliberate judgment in the circumstances. The matter should be canvassed before the courts. We run the risk of heading for a constitutional crisis in the meantime.

* Published in print edition on 2 March 2012