There has been much talk recently of the need to revisit our Constitution with a view to strengthening our institutions, meeting new challenges, promoting nation building and further entrenching fundamental rights and freedom of all Mauritians. The initiative should be welcomed.
But, first, let us remind ourselves of an important lesson. A mere tinkering with the existing Constitution might not do. It can have undesired effects and consequences. In the case of DPP V Khoyratty and Anor, the Judicial Committee of the Privy Council has warned us that any amendment to Chapter II of our Constitution may entail the onerous procedural test provided for under section 47 of the Constitution as amended.
In other words, an amendment would require a vote of three-quarter of the electorate at a referendum followed by a unanimous vote of the National Assembly. The scope and ambit of section 47 was never intended by Parliament to have such a wide application but nevertheless it has had the effect of transforming section 1 of our Constitution into a super entrenched provision impacting on all the other provisions of the Constitution.
It would be important, if we are to revisit the Constitution and take on board critical issues, to set up a Constitutional Review Commission. The Commission will have the task of deciding at the outset whether we are drafting a new Constitution or improving on the existing one. Are there contentious national issues which ought to be at the centre of the discussions if the Constitution’s objective is to promote nation building and further entrench our fundamental rights and freedoms?
The first serious attempt to address these issues come from the Chief Executive Officer of the Law Reform Commission in a paper he presented on the occasion of the visit of Mrs Barbara de Smith, widow of late Professor Stanley de Smith to Mauritius. The attractiveness of the paper of the Chief Executive lies in the fact that he plugs in, in a subtle manner, the areas of our Constitution which have not kept pace with the international treaties to which Mauritius has adhered. Take, for instance, sections 3 and 16 of our Constitution which are not, strictly speaking, in line with the provisions of Articles 2 and 26 of the International Covenant on Civil and Political Rights.
Articles 2 and 26 require that there should be no restriction on the question of discrimination on a number of grounds as provided under sections 3 and 16 of the Constitution. The question of privacy balanced with that of the freedom of expression is also a sensitive area which ought to be revisited. The media in Mauritius fail again and again to understand that there should be a clear demarcation line between the private life of an individual and that of his public activities. Similarly, in relation to court cases, the media ignore the right of an individual to be presumed innocent ad instead treats the person as guilty until proven innocent.
Whilst without any doubt there is a strong case for access to information, the emphasis ought to be that such freedom carries with it duties and responsibilities. The right to freedom of expression, which is afforded protection under section 12, is not, it should be emphasized, an absolute and unqualified right.
Freedom of expression is defined as the freedom to hold opinions and to receive and impart ideas and information without interference. It constitutes one of the essential pillars of a democratic society.
Mr Domingue argues that freedom of expression should go hand in hand with a protection of right of access to information. The citizen has a right to be informed of any information held by the State which affects him. Whilst this proposal can give rise to controversy, the proposal of Mr Domingue as regards introducing in our Constitution the right to education, to language and culture, to housing, to basic amenities, to a healthy and sustainable environment and finally to freedom of trade, occupation and profession ought to carry a consensus. These would serve as a palliative for the absence of economic, social and cultural rights under our Constitution.
Moreover provisions should also be made to cover the rights of vulnerable persons, such as children, the elderly and persons with disabilities.
The question of electoral reform is another aspect which ought to be addressed and, as we were so aptly reminded, Stanley de Smith wrote: “The idea that minority communities should be guaranteed special representation as such in the legislature is seldom acceptable in Africa and Asia today. Communalism stands for divided loyalties; it inhibits the development of national consciousness; it is identified with religious fanaticism or tribal separatism or economic and social privilege.”
Stanley de Smith should, after 42 years of independence, remain our torchbearer when we decide to revisit the Constitution.
* Published in print edition on 15 October 2010