“One should not play with the Constitution…

… nobody is ‘tinkering’ with the Constitution. It is my constitutional duty to make sure that our Constitution is respected by institutions and individuals alike”

Interview: Maneesh Gobin, Attorney General
We fairly and squarely won the 2014 general elections. There is no questioning the political legitimacy when the people have spoken so loud and clear’

We have interviewed the Attorney General Manish Gobin this week, and sought clarifications about the Commission of Enquiry set up by Government to look into the Commission set up by former president Ameenah Gurib-Fakim when she was forced to step down due to allegations of financial impropriety and her links with the controversial businessman Alvaro Sobrinho. The AG is categorical that the Constitution is being respected as due legal process has been used to set up this Commission, and requests that we wait its enquiry and report before we come to any advance conclusions about the findings and the eventual recommendations.

 

Mauritius Times: The Commission of inquiry set up to investigate into the circumstances related to the “purported commission of inquiry” by Mrs Ameenah Gurib-Fakim in March 18, has already come in for criticism from some members of the bar on the ground that the said commission would go against the doctrine of the separation of powers as set out in our constitution. The view expressed is that it’s only the Supreme Court that can be called upon to pronounce on the constitutionality or otherwise of an act initiated by whomsoever, be he or her President of the Republic or not, and that it would be improper for a commission of inquiry to propose constitutional amendments which is the prerogative of the legislature. How do you react to these criticisms?

Maneesh Gobin: You have rightly stated in your question that the commission of inquiry – the Caunhye commission is the title which has been adopted by the press – has been set up to investigate, and I stress on the words which have been published in the terms of reference in the government gazette, namely that the commission has been appointed “to inquire into and report on…” a number of issues.

At no time has anyone who is in his right mind held the view, except perhaps those who are laboring under some delusion, that the commission was appointed to write a judgment in lieu and stead of the Supreme Court – or any other court for that matter. The Supreme Court delivers judgment. A commission of inquiry inquires. Now it stands to reason that after inquiry, the commission will write its findings and report. It also stands to reason – and this is plain in the terms of reference – that the commission will write its recommendations.

* You would however expect that the commission will be challenged and its legitimacy questioned on the grounds that it’s only the Supreme Court which can determine the constitutionality or not of any acts, bearing in mind that the sitting judges would not be sitting in their capacity as judicial officers, don’t you?

All the commissions of inquiry appointed under the law of this country have sat and have heard evidence, and have also heard objections as well as challenges of all sorts. There is nothing sinister about that.

Objections will probably be made and challenges will probably be lodged, but arguments will also be heard and rulings will be delivered. All I am saying is that the due process of law will follow its normal course and the rule of law shall prevail. And we shall all see the light at the end of the said due process.

* There is also the question of the commission inquiring into the involvement of any law practitioner in the “drafting, advising, or participation” in the Gurib-Fakim’s commission. There has been the unequivocal stand of the bar council as stated in its recent communiqué. Isn’t this an attack on the sacrosanct principle of legal privilege?

One ought not to hold out the “unequivocal stand of the Bar Council as stated in its recent communiqué” as if it were equal in authority as a judgment of the Supreme Court of Mauritius. The communiqué is a communiqué of the Bar Council. No more. No less. Well – be that as it may.

I take this opportunity to repeat once again – the due process of law will follow its normal course and shall continue to do so in our country for as long as the rule of law prevails. The terms of reference have been gazetted and it is open to anyone to carefully read and understand. There is no attack on anybody. There is a commission of inquiry appointed to inquire and report. I cannot however fail to pause to remark how the persons who were “operating” back in March of this year are the very same persons who have started to feel fidgety now that the Caunhye commission has been appointed to inquire and report.

* A reading of the terms and attributions of the Caunhye commission gives the impression that the government would not be comfortable with the procedures for the removal of a president and/or vice president as laid down presently in our constitution, and would wish to smooth the process thereof. What’s wrong with the current procedures?

The terms of reference of the Caunhye commission are clear to those who care to read and comprehend. Let us not allow ourselves to get swayed by any “impression”. Suffice it for me to say that government will await the report of the commission and then take a decision after considering the evidence, the findings and the recommendations thereof.

* It is generally held that one should not play with the Constitution to suit political exigencies, and that tinkering with the constitutional provisions relating to the ‘removal of the president and the vice-president’ or to presidential immunity would not be proper. And that it would be best left to a constitutional reform commission to sit on such matters and to propose reforms deemed appropriate to the legislature. Wouldn’t that be the right way to proceed?

Indeed one should not play with the Constitution. I am the first to say so. But who is talking about “playing” or “tinkering” here? A Constitution is a living document. The constitutional evolution of this country has been a long process, and it is the law of nature which drives evolution based on the evolving circumstances of a country.

Let us take the question of the presidential immunity for instance. This immunity stems perhaps from the age old convention of the British monarchy that the sovereign can do no wrong, hence the sovereign is immune! Do you know how such immunity is commented upon in international fora nowadays?

The days of realms and sovereigns are long gone! If evolution has to bring positive changes, then let us embrace this evolution whether it comes from a constitutional reform commission or from the recommendations of a commission of inquiry.

* Wouldn’t it have been more appropriate to screen candidates to key posts, constitutional and otherwise – be it for the president’s office or not -, beforehand with a view to ascertaining their credentials rather than tinker with a constitution that has stood the test of time during half a century?

Once again – nobody is “tinkering” with the Constitution, and it is my constitutional duty to make sure that our Constitution is respected by institutions and individuals alike.

Now, candidates are indeed screened. In fact, it is not only appropriate but essential for a screening to be done. Candidates are screened at all levels whether in the civil service, private sector or for constitutional posts holders. The screening is done by interview panels, by selection boards or by the people in the case of elections. But who has ever designed a foolproof screening system anywhere? Any system is bound to evolve with time.

* One former president had expressed the view on numerous occasions that there is a need to review the power relationship between the president of the republic and the prime minister. What he meant was that the president should be vested with more powers, most of which are presently held by the Prime Minister. Would you say that it would indeed be advisable to consider such “ré-équilibrage” for the appointments to such posts as the director general of Icac, commissioner of police, etc., that is to certain key posts which by their nature and functions should be seen to act independently of the executive…?

It is a paradox that some people speak of our Constitution as “having stood the test of time during half a century”, and yet the same people speak conveniently of a “review” when talking about the constitutional powers! Never mind.

It is all a matter of the political and constitutional set-up and in our country, where we have a President who is elected by a simple majority in the House and this without any debate, then the powers that are vested in such office ought to be proportionate having regard to the rule of law in our democratic set-up.

* The former Prime Minister has lately been saying that his party, if re-elected to power, would consider amending the Constitution to prevent any future “deal papa-piti” – that is to ensure that no Prime Minister hands over that post to his son/daughter within the party. That sounds reasonable, since it would thus require that a popular mandate be obtained for anybody who aspires to occupy the highest executive post in the country to go through the electoral process – and not get nominated to that post. What do you think?

Would not that amount to playing or tinkering with the Constitution then? Political legitimacy comes from the people through the electoral process, and we fairly and squarely won the 2014 general elections. There is no questioning the political legitimacy when the people have spoken so loud and clear. It is perfectly understandable that some are still feeling sore about it.

* Wouldn’t it be ethically appropriate, in that same spirit, for office holders – be they ministers or Prime Ministers, past and present, to step down once they get caught up in some scandal and are made to face criminal charges until such time that their reputation and good name get vindicated/cleared by the court?

To step down if caught in scandal and made to face criminal charges? Sure – step down should include stepping down from party leadership positions, shouldn’t it? Well then, the CLP should step down from leadership then, shouldn’t he? I am not talking of the Constituency Labour Party, but the clinging leader of the party.

Now, if you were to suggest, and I am assuming you are not doing so, that stepping down should only apply to those in government positions, then this government has nothing to be shy about. Some people conveniently choose to turn a blind eye to the stepping down of Pravind Jugnauth until such time as he was vindicated by the Supreme Court of Mauritius.

* The ministerial committee set up to look into the issue of electoral reform has yet to submit its recommendations. Lots of people are hoping that the reform proposals would go beyond the mere issue of compulsory declaration of ethnicity by candidates for electoral purposes, and would address the issues of the limitation of the prime ministerial mandates to two terms, that of sanitizing the way power is shared and exercised by making political parties more democratic in their functioning and decision-making process, and by ensuring better control and transparency over party finances, etc. Would that be too much asking?

Our electoral system has stood the test of time, hasn’t it? Reforms shall come, and I am very pleased to say that the ministerial committee chaired by our Minister Mentor has completed its task and is preparing its report. But please, don’t mix electoral reforms with the issue of “making political parties more democratic”. The democratic workings of a specific opposition party are giving goose pimples to many these days. These are separate issues.

* The manner in which parties operate here and our electoral system favour the centralization of power in a single or few hands, thus hampering the emergence of younger and committed leaders to the top, and we end up with the Jeehas and Obeegadoos getting sidelined in the MMM, the Boolells and Baichoos in the Labour Party as well as the Bodhas and Gobins having to play second fiddle to the party leader. Is there any hope to see change happening on that score?

Are you aware whether and why the Jeehas and Obeegadoos have been indeed sidelined? Well, I am not. Political party matters go deeper than what meets the eye and surely deeper than what hits the local press! The same applies to the Boolells and Baichoos by the way. The equations of political party mathematics are yet to be formulated, and we are a long way from clear-cut “black or white” scenarios.

Now, for my part, that I have to play second fiddle is only natural given my young standing, but I am not sure you are doing justice to my colleague Bodha who has risen from the rank and file of the party to become the secretary general, not to mention front-bencher!

The change is already here and 2014 will be remembered as a political milestone in the electoral evolution not only of our country but also of our region. Look at India, Seychelles and South Africa round about the same time. The wind of change was blowing, and right now a similar wind is blowing in other parts of our region.

Time will tell the extent of change that our region will see, but that is another matter for perhaps my next interview with you.

 


* Published in print edition on 25 May 2018

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