In the context of the seemingly unending spectacle of so many high dignitaries and people from the purportedly “good and the great” sections of society being charged for various criminal offences, there are two trends which are emerging. No doubt the dominating one remains that, since all citizens are equal in the eyes of the law, there is no reason for any discrimination to be made in the treatment meted out to the latter.The other line of thought, which is presumably shared by what is still a minority, is that of those who have started grumbling about the fact that certain people were probably being “harassed” by what looks like excessive procedural and other forms of arbitrariness.
In an effort to sway public opinion in his favour, Navin Ramgoolam, leader of the Labour Party, is the most vocal among those who protest that this is all part of a “political vendetta”. All the parties involved in this process are undoubtedly fully conscious that public opinion can sometimes be fickle and their communication advisors would be monitoring the evolution of the social mood. In short the political game is in full swing as each party tries to draw maximum support for its own partial view of things.
It is in such tumultuous times that constant reference to the basic concepts of what defines a democratic society serves as a beacon for reaching principled stands on what is happening around us. One of those founding tenets which is most relevant to the prevailing context is of course the Rule of Law. Indian constitutionalist Soli Sorabjee states that “the rule of law is not a mere legalistic slogan. It denotes a way of life, commitment to certain principles and values… It represents civil society’s endeavour to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence.”
This is certainly one of those moments when the maturity of our law-enforcing and legal/judicial system is being put to the test. There are basically two challenges which public opinion seems to be concerned about.
One is whether the non-discriminatory application of the law towards all citizens independently of their status in society is being adhered to, but equally whether the right of the individual to fair legal process is being respected.
The second one is with regard to another essential component of the Rule of Law i.e. that the exercise of governmental powers shall be at all times conditioned and controlled by law.
If one of the defining principles of the Rule of Law is to set limits to the powers of government and thereby protect the freedom of the individual, then it is up to the Judiciary to operationalize this principle in strict observance of the doctrine of the separation of powers among the three branches of the State.
Upholding The Constitution
There is another twist to this whole affair which one cannot feign to ignore in the name of “political correctness”. At the very start of this on-going drama, there has been an attempt in some quarters to impute “communal” motives to the unfolding events. Thankfully the government spokespersons reacted promptly by demonstrating that similar actions had been taken indiscriminately against diverse other parties, thus nipping this trend of arguments in the bud.
The temptation for politicians to have recourse to such base tactics is permanent because the obvious short term gains from them tend to blur the longer term damage, and generally politicians are known to be nothing but expeditious.
In Western developed countries with a fairly homogeneous population the development of Constitutional law is basically concerned with protection of the individual’s freedom and liberty against the might of the State. In Mauritius the fathers of our written Constitution have recognized “diversity” as a critical factor of our polity, and have therefore gone to great pains to craft the perfect instrument for balancing the powers and interests among a diverse population. The authors were clearly obsessed by their determination to ensure that there would not be any threat of the “tyranny of any majority”.
Unlike in Western developed countries therefore, upholding the Constitution in Mauritius cannot ignore this undercurrent of politics also as a balance of powers and interests among communities. It follows from this that upholding the Rule of Law and the integrity of our institutions through thick and thin becomes a prime responsibility of an above-board and independently-minded judiciary.
The greatness of principles is defined by their resilience and their endurance in spite of radical changes in the socio-political environment. Thus if one were to trace the origins of the single most important milestone in the development of the concept of Rule of Law, one would have to refer to the Magna Carta (1215) by which the King of England was forced to acknowledge that:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we (the King) proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
Students of constitutional law can cite many contemporary examples of the re- affirmation of this basic principle throughout the Commonwealth in the guise of defence of the concept of the Rule of Law. In India, for example, in 1961 the Supreme Court declared that “the Rule of Law means that the government could not take the law into its own hands, that it cannot dispossess persons by a display of force, and that it cannot disregard the normal requirements of procedures in a society governed by a Constitution that guarantees its citizens protection against arbitrary invasion of their rights.”
On balance, although there is an inevitable perception that there is a “political dimension” to what is happening — after all the main protagonist is the former Prime Minister — there is yet no clear evidence that justice is not following its proper course. The hype created by the media and the sheer number of cases which are being filed against a number of dignitaries associated with the former regime does, however, impose a duty of transparency and strict observance of procedures on those who are in charge of proceedings – for beyond the actual events it is the trust of the people in our law-enforcing and judicial institutions which is at stake.
* Published in print edition on 5 June 2015
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