Milan Meetarbhan: “The powers of amendment given to the National Assembly under our present Constitution are no more acceptable”

Mauritius at 50: The Constitution

‘Politicians will always be suspect when it comes to electoral reform…
… because they will have a vested interest in the outcome’

Milan Meetarbhan is a well-known constitutional expert and the author of a recent book on the Constitution of Mauritius. He has served the country in various capacities, notably as representative of Mauritius at the United Nations in New York. In the 50th year of our independence he is well placed and qualified to share his views on various aspects and issues relating to our Constitution, and how the country should proceed to update it in light of the experience and empirical evidence gathered over these past years as it functioned or ‘dysfunctioned’ under the Constitution that was passed on to us by the British Parliament.

 

Mauritius Times: If our Constitution was “granted” to Mauritius by the UK Parliament, as you suggested at the launch of your book ‘Constitutional Law of Mauritius’, and that it was not initially adopted by the Mauritian Legislative Assembly or by a Mauritian Constituent Assembly, does this mean that it had been, from the word go, only the doing of the then British colonial authorities – unlike what obtained in India where B.R. Ambedkar is hailed as the principal architect of the Constitution of India and a founding father of the Republic of India?

Milan Meetarbhan: Indeed our Constitution was granted by the UK because its legal authority is derived from a legislative act of the UK. It is true that the present Indian Constitution was adopted by an Indian Constituent Assembly and that BR Ambedkar played a key role in the drafting process but this was after Indian Independence. India became independent in 1947 following the adoption of the India Independence Act by the UK Parliament but the Constitution was adopted only two years later and came into force on 26 January 1950. In Mauritius, the Constitution in force 50 years after Independence is still the one adopted by the UK Parliament though there have been several amendments made by the Mauritian Parliament over the years.

However there were consultations between the UK Government and Mauritian political leaders prior to the enactment of the Constitution. We all know about the Lancaster House constitutional talks in 1965. What is probably less known is that the British Government announced at the beginning of these talks that it had an open mind about the future constitutional status of the country, and would listen to the views of those who wanted independence as well as of those who were opposed to independence and wanted an associate status with the UK. It is only at the end of the talks that the UK decided that Mauritius would move towards independence should the majority elected at the ensuing general elections so request.

* In some other places the British have left behind strife and turmoil what with the borders and the Constitutions “granted” to the erstwhile colonies. There has been the excision of the Chagos, the pound of flesh which the British took along when they walked away, but can it be said that Mauritius has been luckier even if its Constitution is of British origin?

Unlike most other former British colonies, there was in Mauritius strong opposition to independence. The great divide was essentially on ethnic lines. In view of this and the various concerns expressed by leaders of parties representing particular groups, the Mauritian Constitution provided for some unique features. The powers of the Governor General, for example, were wider than those found elsewhere, to give assurances to these communities that some decisions would not be in the hands of the political executive. Various other safeguards were also introduced.

* Would you say that the Constitution of Mauritius, which came into force on 12 March 1968, reflected the needs and aspirations of the country and of its people at that time, and that it has served us well – or not well enough and how so?

In providing the safeguards I just mentioned and in also providing for instance for appointment of Best Losers, the Constitution did address the concerns of what were deemed to be ethnic minorities. To that extent, various provisions of the Constitution seen in its historical context were probably justified in view of the conditions prevailing in the mid 60s. The question today is whether 50 years after independence and 18 years into the 21st century these concerns are still valid and the corresponding safeguards still necessary.

In addition, we now have empirical evidence of how various constitutional provisions have worked or not worked. We need to examine these and decide on the future course of action. For instance, we have had 11 general elections based on the present electoral system. We have found that in some cases the outcome has given rise to two major issues. One is that a party with over 30% of the vote may not have any representation in Parliament. The second one is that a party with just around 50% of the vote can have over 75% of the seats in Parliament and thus change the Constitution at any time according to what it finds politically expedient to serve its own interests.

These are certainly not acceptable in a democracy.

In the mid-60s it was probably assumed that no party or alliance on its own would have the required three quarters majority to alter the constitution and would thus need the support of the opposition to amend the supreme law. If that were the case, then there would be some kind of national consensus supporting the amendment. But we now know that in practice this has not always been the case.

* There is a view about that the Constitution needs to be updated to reflect modern trends especially in the area of protection of fundamental rights with a view to expanding “the constitutional protection of individual rights in our country and to move from negative rights to more positive rights that include social and economic rights”. What are those rights about and what’s the rationale for that proposition?

Yes, this is indeed the view I have expressed on many occasions. After 50 years of constitutional law and practice, we need to take stock of what has worked and what has not worked well enough. In addition we need to see what could not be in the minds of the drafters of the constitution in the mid-60s but which modern democracies need. Such a review exercise would not imply at the outset that we need a new Constitution. It would be an independent and objective assessment of how the Constitution has met the aspirations of the nation and it will also look at global and local developments and examine how the constitutional regime should be modernised and updated to take these new developments on board.

This is particularly true of the protection of fundamental rights. Our Bill of Rights enshrined in Chapter 2 of the Constitution is based on the European Convention of Human Rights which was adopted in 1950. The world has moved on since then.

* There should be broad agreement on the right to the provision of education and to health, but wouldn’t it amount to expanding the nanny state if the right to housing and the one concerning the right to an adequate standard of living were to be adopted? Who will pay the nanny?

Some countries including a few in the region have specifically provided for a right to education, right to health or right to work in their constitutions. The extent to which these rights can actually be enforced by the courts varies but these are still constitutionally recognised rights. In Mauritius, though we have put in place a welfare state before Independence, these rights were not specifically provided for in the Constitution. Do we need to have them protected by the Constitution?

The Labour Party has enabled our country to have what is probably one of the most comprehensive welfare states amongst developing countries. However there is a debate in many countries about the need to reduce inequalities but at the same time revisit the role of the State. Any debate on introducing the constitutional protection of certain rights which would entail judicial enforcement of the rights will have to take place in the context of this wider debate.

* How about adding instead the right to public safety given the law and order situation presently prevailing in the country and the right of information, which may prove to be a formidable tool to bring about transparency and accountability and help fight corruption?

Our Constitution already provides for the right to life and the right to liberty. A more progressive judicial interpretation of these rights may afford greater protection of individual freedoms. I believe that the constitutional protection of a right to public safety would give rise to serious challenges. There is no doubt that our country needs to take a serious look at law and order which is increasingly a threat to development and prosperity of this nation. During the last electoral campaign it was suggested that just bringing one person back would restore law and order in the country. The situation is in fact worse today. The solution however does not necessarily reside in guaranteeing a constitutional right which in any case may already be subsumed in existing rights.

As far as the right to information is concerned it has been suggested by a Minister in the present government that this is already provided under Section 12 of the Constitution. I do not subscribe to this view. I believe that as part of the modernisation of our Constitution and consolidation of our democracy, we should consider as part of a constitutional review exercise, a constitutional right to information which would be enforced by the courts. As you mentioned the fight against corruption, it may be recalled that the constitutional provision relating to the Economic Crime Office charged with fighting corruption was summarily scrapped by a government elected in 2000 without prior public consultations. The constitutional amendment bill was introduced, debated and adopted within something like 48 hours.

* Would it be also necessary to provide for a constitutional right and instrument that would enable concerned or aggrieved citizens to challenge a government bent on passing a law or implementing an administrative decision in its favour – which it has not obtained by prior popular mandate?

In addition to the specific provisions of a Constitution it is important that a democracy is also guided by constitutionalism. There are values, norms, conventions which a self-respecting democracy abides by and enforces over and above the strict provisions of the Constitution. A transfer of power may in some circumstances be consistent with the letter of the constitution but totally inconsistent with democratic values. Though the courts may take into consideration certain principles and values which underlie a democratic State -Section 1 of our Constitution states that we are one – yet the ultimate sanction of abuse by the political executive is often a political one and not a judicial one. Introducing constitutional rights alone will not provide an adequate safeguard against abuses.

In this context I must say that until and unless the ease with which a party or an alliance can amend the constitution and remove limitations on powers of the legislature or the executive are reviewed, there will be serious threats to our democracy. We know how our existing electoral system can lead to huge majorities without corresponding support in the country and we have witnessed several cases over the years of the use and abuse of parliamentary majorities to rubberstamp constitutional amendments which the Executive wants to introduce.

Recent examples of attempts by the Executive to remove constitutional hurdles so that it can implement its political agenda should be a wake-up call for the nation. A Constitution can be a bulwark against executive and/or parliamentary abuse by setting the limits to executive or legislative powers. If these limits can be removed by the same Executive through its parliamentary majority, the Constitution ceases to be a bulwark against abuse.

* A democratic system even if it comes with the provisions that ensure effective separation of powers is as good as the men and women who man the system at the level of the legislature and the judiciary. How have we done on that score?

The best constitution in the world will ultimately depend on the people who will apply it and enforce it. We have seen in recent years how our institutions have functioned in a very different way from what we are used to, in spite of the fact that the constitutional and legal frameworks remained the same. The world is witnessing a transformation of US democracy because of one man. Smaller countries are obviously much more vulnerable. Their democracies are more fragile and it is stunning how an established constitutional regime can be toppled in a very short period of time by the people in power. Even if the constitution remains the same, constitutional practice and governance can swing the nation from one end of the spectrum to the other in a matter of months.

Smaller countries are much more dependent on their image. Investor confidence is crucial and can have huge impacts on development. Trust in institutions is key to nation building. Yet all these can fall over very quickly because of the people at the helm.

It took a lot of work and good governance since independence to build confidence and image. Once confidence is lost and institutions are weakened, it will take years for a new government to restore the country’s standing.

* Is there the need to consolidate the system by setting up another constitutional body with the power to check abuses and provide redress to aggrieved citizens? Or is the Privy Council a sufficient bulwark against all manner of abuses?

Judicial enforcement of rights and democratic principles is of the most crucial importance. But this on its own is not enough. Judges do not make law but apply the law. This is why constitutionalism is as important as the constitution. In many countries people tend to vote against a party and not always for a party and what it stands for. In doing so, they overlook the cultural and democratic values (or absence thereof) of the party challenging the incumbent. They pay less attention to the competencies within the ranks of the challenger. Governance is not just what is prescribed but also about the inherent values of the people who are entrusted with power.

I believe that there is a national consensus on maintaining the Privy Council as our highest court of appeal. Having participated in a number of road shows across the world promoting investments in Mauritius, I know how important the right of recourse to the Privy Council is in marketing our jurisdiction. However I repeat that even if our own judges and the judges of the Privy Council are considered, and rightly so, as bulwarks against abuses by the executive and legislative branches of government, ultimately the most important factors in the consolidation of democracy are the mores of a particular society and the democratic instincts of the people entrusted with power by that society.

* It does not seem to be always the case though when British interests are involved, like when it comes to challenging the British government’s doings as regards the Chagos…

Of course the dispute between Mauritius and the UK is a matter of international law and not of English law to be determined by British courts. The former inhabitants of the Chagos who claim British citizenship and decide to fight for their rights before British courts are perfectly entitled to do so but the State of Mauritius will choose its own forum to resolve the legal dispute with the UK over sovereignty.

* Care should nonetheless be taken that whatever review is carried out and updates/additions made to our Constitution should not weaken the State and the capacity of the government to do what it’s meant for. Who should therefore decide what is best for Mauritius?

The 50th anniversary of our Independence is an opportune moment for reflecting on our constitution and the upgrades that we require for the 21st century. However how and who should conduct the exercise that leads to reforms is of crucial importance. As things stand, it is the National Assembly which can alter or even repeal the constitution with the prescribed majority. But it is not up to politicians with their own vested interests who can be trusted to modernise our Constitution. The review must be conducted by an independent body which would hold wide consultations with all sections of society and ultimately it must be the people of Mauritius who have the last word through a referendum.

* Don’t you think politicians would know what is best for our electoral system, and the judiciary for our justice system?

No. They will not. This is why I suggest that any review be carried out independently and that the final say over the recommendations of the review panel remains with the people at large. This review by the way should include electoral system reform. Ideally constitutional amendments should not be done piecemeal but as part of a comprehensive reform of the constitutional regime. In any case, politicians will always be suspect when it comes to electoral reform because they will have a vested interest in the outcome. The decision therefore should ultimately be made by the people and not by the political class.

* One could argue that the framers of our Constitution had intended it to serve the needs of Mauritius for so many decades. It might be hazardous when working on an update of our Constitution to time-frame our vision to beyond the next 50 years especially in the current age of disruption. What do you think?

Yes, whilst we work on an updated constitution for the 21st century and make sure that we take care of loopholes, incorporate latest advances and perfect our democracy, we cannot have an unalterable constitution or one that can only be altered after a certain period of time. Constitutions may have to be amended from time to time but the question is how can they be altered. The powers of amendment given to the National Assembly under our present Constitution are no more acceptable and must be reviewed.

 

* Published in print edition on 16 February 2018

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