Qs & As
‘When holders of constitutional posts are subject to short-term contracts that are renewed periodically, this creates a perception that a favour is being bestowed on them’
From the provisions of the 1968 Constitution and the legal and constitutional protections offered to holders of key offices, to today’s far from salubrious situation, much water has flown under the bridge. Of significance were the 1982 amendments which made all appointments by the PM or any Minister an ejectable office-holder after general elections and the fortunately foiled attempt in 2017 to bring the DPP under the control of politically appointed commissars. There are still several nominally independent posts with Constitutional protection, and where that independence and credibility are only a reflection of the office-holder’s moral fibre. Lex shares his views below.
* We often come across some local commentators taking issue with the constitutional amendments voted by the MMM-PSM government that would have weakened the protection and the security of tenure that the 1968 Constitution provided to some important public sector posts. Which posts were targeted, and what does the law now provide in terms of security of tenure?
There are a number of holders of constitutional posts who enjoy security of tenure. They are the Judges,; the Director of Public Prosecutions,; the Director of Audit, Members of the Public Bodies Appeal Tribunal, and the Commissioner of Police. The removal of these holders require an investigation by a special tribunal appointed by the President of the Republic.
* We understand that besides the Best Loser system and the skewed electoral boundaries that were put in place by the British colonial authorities, some say at the behest of certain political leaders of that time, the protection provided to the constitutional posts (like the Commissioner of Police, DPP, etc) were also an additional guarantee of protection for the minorities to counter against excesses, if any, of majority rule. Has this served the country well?
In the not too far past no Director of Public Prosecutions, no Commissioner of police would harass any member or any citizen irrespective of community; religion or political allegiance. They did their job within the meaning of the rule of law without being subservient to the political regime in place. Today the same can be said of the current Director of Public Prosecutions who did not hesitate and acting in total independence to prosecute the former Prime Minister in two major cases.
Can it be said that the prosecution of Sir Gaetan Duval was decided independently? Can we say that the arrests that followed the 2014 general elections were done by a Commissioner of Police acting independently? The answer is obvious.
To answer the question, the system worked well until the indiscriminate arrests of 2014 and thereafter.
* A reputed constitutionalist would have in the past advised a former Prime Minister that unopposed rule without any obstruction whatsoever could only be ensured through the effective weakening of the Judiciary and the Office of the DPP. Sound advice if we go by the attempts in recent years to establish the Prosecution Commission, right?
Many politicians not only in dictatorships but in so-called vibrant democracies believe that there should be no counter power to their political power. They therefore try to annihilate the lawful Opposition and either directly or by subtle methods they attempt to undermine the independence of holders of posts like the Commissioner of Police, the Director of Public Prosecutions and even the Judiciary.
The attempt to control the office of Director Prosecutions was to place that office under a politically nominated commission whose members would have been at the beck and call of the government. Those close to the government would have been totally immune to prosecutions and those not in the good books of the government would be dragged to court. Thankfully this did not happen.
En passant, it would be worthwhile to recall the scrapping of the defunct Economic Crime Office headed by Ms Indira Manrakhan which put a stop to an investigation of a former minister. That was the weighted majority of the MSM-MMM government. This example shows how dangerous it is to give a weighted majority to political parties or alliances.
* The context is different today. But could it be said that the removal of the constitutional protection provided to some of the top posts in the civil service could or has weakened the effective application of the separation of powers as envisaged in the 1968 Constitution?
Top posts like judges and some others are still protected. What has changed is the situation of those who are appointed by the Prime Minister, the Deputy Prime Minister, or any other Minister or on his advice or after consultation with him, or with his approval. Such holder of the office may be required to vacate the office at any time after a general election held after the appointment.
The inclusion of this provision was done by the MMM-PSM government of 1982 in order to get rid of then existing holders and to place their own people. And no compensation shall be payable to those holders for loss of office by reason of the termination of his appointment, other than such compensation as may be prescribed under the laws relating to employment, and they shall not be entitled to any other damages or compensation under any other law whatsoever.
* The Commissioner of Police (CP) enjoyed security of tenure thanks to a “minimum four-year term” that the 1968 Constitution (Article 113) provided. That was amended by the MMM-PSM government in 1982, and the “minimum” term limit changed to a “maximum” four-year term, which henceforth made it possible for the Prime Minister to intervene in the appointment of the CP as regards the number of years he would want him in office or through an extension of his contract. Can the CP effectively run the police force without being subjected to the “direction or control of any other person or authority”?
When holders of constitutional posts are subject to short-term contracts that are renewed periodically, this creates a perception that a favour is being bestowed on them and they have to return that favour to their well-wishers. Then the words “without being subjected to the direction or control of any other person or authority” lose their importance and value. Whereas if the holder gets a one-term contract that is not renewable, the perception of independence is more credible.
* Just like the Director of Public Prosecutions, the Electoral Commissioner, the Director of Audit, etc., also enjoy some form of constitutional protection, and not subject to the direction or control of any other person or authority. Is that correct?
Yes, and they cannot be removed except for misbehaviour. In such a case the President of the Republic has to appoint a tribunal to investigate. Once he is in presence of the findings, he will take whatever action is appropriate.
* But what if the DPP, the Director of Audit, etc., are not provided with the information – usually provided by the police and the different government administrative bodies/institutions respectively – to be able to fulfil their constitutional duties?
Well there is not much they can do. We have seen how the police bungled the Kistnen case not only at the level of the investigation but also during the judicial inquiry. Even when the DPP asked the police to complete the investigation following the filing of a private prosecution they took their time.
As for the Director of Audit he was denied access to documents relating to public finances on the flimsy pretext that they were with ICAC. Yet section 110 of the Constitution clearly states the following:
‘The public accounts of Mauritius and of all courts of law and all authorities and officers of the Government shall be audited and reported on by the Director of Audit and for that purpose the Director of Audit or any person authorised by him in that behalf shall have access to all books, records, reports and other documents relating to those accounts.’
* What about the Director General of the ICAC? Does the law provide some form of protection to ensure that he would be able to resist any pressure from anybody and not be subjected, like the DPP, to the “direction or control of any other person or authority”?
The POCA states clearly that the Director of ICAC should not be under the direction or control of any other person or authority. If he chooses to be subservient, it is not only his personal problem; it is however a matter of serious concern for our image of integrity internationally.
* Is it absolutely important that the holders of the constitutional posts be not subjected to any form of control? Shouldn’t they not be made answerable to at least some form of oversight – parliamentary or otherwise – rather than through onerous and time-consuming judicial reviews?
Agreed and some thought must be given to that idea. However, when questions are asked in parliament about the workings of some institutions, answers are not given for a number of reasons or the Opposition is shut down or expelled. What oversight can we have? As for the Parliamentary Committee on ICAC, it is a toothless bulldog. It as if it exists under the present regime to protect the Director of ICAC.
* On 7 May 2020, the EU included Mauritius on its revised list of high-risk countries that have ‘strategic deficiencies in their anti-money laundering and counter terrorist financing frameworks’. Does this mean that those placed in positions of authority/supervision are not doing their job competently or are perceived to be amenable to the direction or control of some other person or authority?
The answer lies in what R. laxman wrote in this very paper on 4 February 2019:
‘It is one thing to have any number of institutions in a country – but which hardly perform the role for which they have been designed. It is quite another thing when institutions function efficiently to fulfill their mandate fearlessly. It is not that under-performing countries where the rule of law prevails do not have a plethora of similar institutions that exist in well-reputed countries. They have them all. But those institutions fail to live up to their mission either because political powers that be have scorched them or because their top brass fall short of the mental and moral fibre required to do what should be done. Efficiently functioning institutions are what differentiate countries that achieve and those that do not.’
* At the end of the day, the constitutional amendments of 1982 have not been struck out from our statute book by subsequent governments when they commanded the sufficient parliamentary majority to be able to do so. Does this mean politicians are all the same finally: they must be in control…?
Some are more authoritarian than others. Have we ever seen the erosion of public confidence and the loss of reputation of our institutions internationally under any other government than the present one?
* Published in print edition on 13 July 2021
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