“No opposition anywhere deserves to win elections only on the back of popular discontent

Interview: Milan Meetarbhan

‘Sitting back and waiting for the tide to turn because of anti-incumbency is not a viable option. And shouldn’t be one’

* ‘Not all parties in Mauritius would need State funding! One has a war chest that will enable it to fight several campaigns’

* ‘First and foremost the electorate must decide whether they want people of integrity, competence and respect for values… to be in government and vote accordingly’

Milan Meetarbhan, well-known legal and constitutional mind, shares in this interview his views on various issues of relevance regarding the state of political governance and democratic culture in the country. The Opposition has, as is their democratic duty, attacked the performance of the ruling party/alliance as one affair chased another in the headlines, but how far would they be prepared to go to implement change once in office? Milan Meetarbhan weighs in on the desirable contours of what should be on the cards of a reform-minded political dispensation.

Mauritius Times: Nadhim Zahawi has been sacked last Sunday as Tory party chairman after an inquiry, ordered by Rishi Surnak and conducted by ethics adviser Sir Laurie Magnus into the handling of his tax affairs, found that Mr Zahawi had “shown insufficient regard for the general principles of the ministerial code” and had not fulfilled the requirements of being an “honest, open and an exemplary leader”. If ministers fall foul of the ministerial code in the UK, they are damned… Too bad we do not have the equivalent of Sir Laurie Magnus here, isn’t it?

Milan Meetarbhan: First, it’s too bad that we do not have an equivalent Ministerial Code in Mauritius. Then it’s too bad that we do not have an Ethics Adviser. But irrespective of whether you have a Code or an Ethics Tsar, the most important thing in any democratic society is whether the ruling class has a culture of ethical conduct or whether there is no culture whatsoever.

Any society needs safeguards, accountability mechanisms, judicial control and so on but first and foremost the electorate must decide whether they want people of integrity, competence and respect for values and institutions to be in government and vote accordingly.

Should the electorate exercise such discernment, the political class will be forced to adopt a different culture and to commit themselves to freedom of information, enhanced accountability frameworks and proper enforcement.

If we have a culture of impunity and selective enforcement of the law and the people do not demand better then we will continue to see an erosion of values and integrity.

* Labour’s party chairman Annelise Dodds criticised PM Rishi Sunak’s handling of the situation, saying “We knew about these allegations for a very long period of time. The prime minister… vacillated, he wobbled, he couldn’t decide what to do…” She concluded by saying that he “didn’t need an investigation to deal with this matter, he needed a backbone”. Does this strike a chord with what obtains here?

Yes, sure it does. But some don’t need a backbone but a sense of what is right and what is not. Only then can they realise that the conduct of proceedings in the so-called temple of democracy or the flagrant pursuit of a hidden agenda by a regulator or the crude propaganda of a state broadcaster have gone beyond the limits of decency and action is required.

No country needs 2-3 years to find out if there was what the French call ’emploi fictif’ or not. The old legal fiction in some countries was that the King can do no wrong and thus has absolute immunity. Some believe this also applies in what purports to be a democracy.

Those whose philosophy has always been that ‘moralité pas rempli ventre’ or that ‘WE are Government and WE decide’… need more than a backbone.

* The latest Mo Ibrahim report informs us that although Mauritius ranks 1st (out of 54) in Overall Governance in 2021, the country’s score has deteriorated over the last decade (2012-2021) … at an accelerated pace over the most recent five years (2017-2021). That should not come as a surprise, but the governance issue does not seem to have as yet become a determining factor in who wins or loses elections, isn’t it?

The Mo Ibrahim Index is the latest of a series of reports, ratings and indexes published by international bodies which have found that good governance has declined in our country in the last few years. They have confirmed what local independent observers have been saying repeatedly. The response of political leaders, who are in a state of denial, is to accuse these international bodies of conniving with the opposition!

Good governance, accountability, transparency, are not only matters for academic debate. They affect people’s daily lives more than they realise. Corruption, theft of taxpayers’ money, nepotism deprives those working hard to earn qualifications of what they deserve, fraudulent practices rig the procurement process, lack of independent and impartial institutions make a mockery of regulation and administrative integrity. So good governance should in any democracy be a key indicator of where a country is heading and how people will fare.

* The current government has adopted a business-as-usual attitude even in the face of the misgovernance issues which have hogged the headlines these last three years. One could expect that it will remain unperturbed no matter what critics, whether locally or even rating agencies, say about its record on this count. That is unlikely to change any time soon, don’t you think?

A government may remain unperturbed and unlikely to change its ways but the country will change and the people and the country’s institutions will come out weaker and poorer. Of course, there’s not always a judicial remedy to every ill. Some argue that there are acts or omissions of rulers which can only be met with a political sanction. And political sanctions come only once in every five years. This is no more acceptable.

Of course, this does not mean that people should take the law in their own hands even if they should be free to express their opposition to practices and policies. We need to ensure that in between elections there are adequate mechanisms, independent institutions, a free press, watchful civil society organisations which will keep a government on its toes and keep people informed of what’s happening.

* But if you want change to happen, that can only take place if the people vote for change, and have to be convinced that what is on offer is a credible and workable alternative. That does not seem forthcoming so far?

No opposition anywhere deserves to win elections only on the back of popular discontent with the incumbent. Of course, highlighting abuses, misgovernance and harmful policies are part of what a challenger does. But the one who does only that does not deserve to win.

In a mature society people expect to be told, and they have every right to do so, what the challenger will do once in office. They have every right to know how credible and effective the proposed policies are and whether the challenger has the right people and the genuine commitment to implement these alternative policies. Sitting back and waiting for the tide to turn because of anti-incumbency is not a viable option. And shouldn’t be one.

* It might indeed seem to be a tall order for the existing mainstream parties, whether in power or in the opposition, to effect change within their own party establishments themselves. Does that seem to be the case?

Renewal is part of life and political parties, like any organisation, have to continually renew their composition and programmes. It’s true that succession planning is not always easy for these parties. Each mainstream party is identified with a leader and, in fact, many voters will vote for that leader whom they want as Prime Minister and not for the candidates standing in their respective constituencies.

Political parties in Mauritius, generally speaking, do not have proper structures, internal democracy is scant, decisions are rarely taken collectively. Everything revolves around the leader. So, it’s not surprising that the leader becomes the embodiment of the party. But as a result of this, anytime the leader goes down in the polls, the party also does badly and there is no avenue for rank-and-file members or even party establishment to effect, as you say, change.

* Opinions may diverge on this, but are you in favour of some form of state funding of political parties, that is, taxpayers and consumers picking up the tabs, for parties activities and their electoral campaigns? What should be the strict countervailing rights of the population to prevent abuse or opening an unknown Pandora’s box?

Not all parties in Mauritius would need State funding! One has a war chest that will enable it to fight several campaigns. But that does not mean that that party will not accept state funding if this is offered!

Yes, parties are seen as playing a major role in a vibrant democracy and as such a case may be made for taxpayers to subsidise political parties to enable them to play their role effectively. It is also argued that such state subsidy reduces the risk of corruption as parties may otherwise be tempted to benefit from the award of public contracts for instance.

In Mauritius, any form of public funding would first require that parties be registered and subject to the requirements for all legally constituted entities. They will need to file returns, have their accounts audited, hold elections of office bearers in a democratic and open manner and so on. Are our political parties ready for this? Will they make themselves more democratic and accountable to avail of public funds?

* On the other hand, the latest stand taken by the Electoral Commissioner, who has submitted an Application for Conditional Leave against the judgement of Justices B. Marie-Joseph and R. Seetohul-Toolsee in the matter of the electoral petition lodged by LP candidate C Sayed-Hossen against the election of MSM candidate G. Bablee, does not indicate any shift in the position of the Electoral Commission as regards the conduct of the last elections. But what about the next one in terms of ensuring free and fair elections?

Any litigant is entitled to exercise the rights of recourse available to him under the law. But our courts also have a duty to ensure that all litigants are treated fairly and are not unduly prejudiced by legal stall tactics for instance. This is especially important in cases involving matters of major public interest.

In the present case, where three and a half years after an election some challenges have still not been resolved, the decision by a public office with a key constitutional function to appeal against a ruling before a final judgment and the possible consequence of which could be that the petition is not heard and determined before the next election is one where the public office concerned must have weighed the policy considerations of further delays.

* Some observers have opined here and elsewhere that the PM and his party may plough on at the helm of the country, regardless of the outcome of the appeal lodged at the Privy Council by unreturned candidate Suren Dayal in No. 8. Would that be a plausible scenario?

I am not sure that this would be legally possible if the Privy Council were to decide that the election of the three candidates in Constituency No 8 was not valid.

Since one has to be a member of parliament to hold ministerial office, the two ministers from that constituency would lose their seats and will not be able to continue to serve as Prime Minister or Minister. Even if the ultimate outcome does not lead to loss of membership, should the proceedings before the court or comments in the judgment show that there was serious irregularity there would be a moral responsibility for the ministers to step down. But not in this country!

We cannot in this kind of situation rule out the fact that the Assembly may be dissolved even before the hearing to avoid the risk of exposure and damage that may occur with a highly publicised hearing that is broadcast to the world.

* Would it be advisable for an Opposition government to end the ability of the PM to call for elections, general or regional, at his sole discretion? The current law allows a PM in office to drag the actual election date well beyond five years, when elsewhere, say in India, the mandate of the National Assembly ends five years after its previous election. Should we not enact a similar provision here?

In fact, we already have a similar provision in our Constitution. The Assembly automatically stands dissolved five years after its first sitting following a general election.

However, one feature we have inherited from what used to be part of the British constitutional regime, is that the Prime Minister can ask for the dissolution of the Assembly at any time before the end of its term and call for general elections. We have seen that in the case of municipal elections, it is in fact the Prime Minister who holds the ultimate power to call or to postpone the holding of these elections. His ministers unashamedly refer to this as the “prerogative” of the Prime Minister!

We have also seen how a Prime Minister can play around with dates for by-elections when he has no intention of holding a by-election and then conveniently dissolves the Assembly in time to avoid the by-election.

Whether it’s a by-election or municipal elections or the general elections, the time at which such elections are held cannot be according to what is politically convenient for the Prime Minister of the day.

All these “prerogative” powers must end. We need as a country, which is celebrating its 55 years of independence, review our constitutional experience since 1968 and bring in the changes that are required.

* A Freedom of Information Act, with adequate safeguards having been a vain promise by all political hues and alliances, why should anybody trust what the Opposition might say on the issue? Will there be a common understanding to bring a bill to Parliament and accessorily end the harassment of private media by the IBA?

A Freedom of Information or Right to Information Act enables citizens to obtain access to information on government business. It has featured in electoral manifestos, but no government has introduced such legislation to Parliament yet.

What you call harassment of private media by the regulator is a different matter. But this issue has to be seen in the broader context of the role and independence of regulators which have hit rock bottom in recent years. This is of major importance to all citizens, to businesses in our country and to restore confidence of international investors in the country.

Since you mention IBA, it’s important to remember that IBA is the regulator for ALL broadcasters including the state-run one. Do we know if the regulator, which has suspended the operations of private broadcasters on some occasions, taken any action with regard to the state-controlled broadcaster or is it fully satisfied that the latter has at all times complied with the letter and spirit of the law and is beyond any sliver of reproach?

* What do you make of the Attorney General’s sortie against the Raphael Fishing Co ltd and his promise to seek every way to “go beyond a Privy Council” ruling in favour of that company over lease rights to a dozen islets of Saint Brandon?

I believe that the Attorney General mischaracterized the Saint Brandon/Raphael Fishing issue as a sovereignty one. This is a matter between the State and a private company over rights conferred during colonial rule. This company is not the only one to have benefited from concessions/grants/leases from the French and British colonial governments. A review of all such benefits may be warranted if the government explains the reasons why this is necessary.

However, any talk of the legislative branch of government in effect reversing a decision of the highest court of the land is treading on dangerous grounds. In a democracy the legislature can change the law for the future if it is not happy with an interpretation of the law by the judiciary but it cannot sit as a court of appeal and quash a decision already handed down by the court with respect to past events.

Mauritius Times ePaper Friday 3 February 2023

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