Can a past President of the Republic get involved in party politics?

By SL Prasad

“Some persons who are interested with the question can seize the Supreme Court with a case to find out whether a past President can be a politician. Maybe they are right to get the pronouncement of the Supreme Court on the matter. And I have a feeling that the case will end up before the Privy Council eventually…”

Paul Bérenger as the leader of the MMM and Pravind Jugnauth, the leader of the MSM and son of Sir Anerood Jugnauth who is the founder of his party the MSM, have said that an alliance between the MMM and the MSM has been concluded between the two parties.

Two of the conditions of this alliance are: first, that some of the members of the Labour Party which is governing the country in alliance with the PMSD and a Rodriguan party, would leave the government party and join with the opposition in order to give this latter a majority in Parliament to support a motion of no-confidence against the government. The MMM is supposed to bring such a motion in the coming days. The second condition is that it should not be the actual leader of the newly-forged alliance Pravind Jugnauth who will lead the such alliance, not even the leader of the MMM who will have the honour of leading it, but the President of the Republic still in office, who will do so. It seems to me that these are two sine qua non conditions for such an alliance to exist for any length of time.

Sir Anerood Jugnauth, the President, whose name has been bandied about by everybody to the effect that he is joining active party politics, has kept silent about the issue. We do not know whether Paul Bérenger and Pravind Jugnauth are trying to bluff their way through. Until we hear Sir Anerood Jugnauth confirming this arrangement in person, we cannot take a stand on the matter. SAJ is making a statement to the press today, and we’ll then know where he stands.

However, I would like to put a question that will help to clarify matters. And the question is this: In the system of governance that we the People of Mauritius have adopted, can a past President of the Republic get involved in party politics as a leader, as a Prime Minister and as a Member of Parliament? This is an essential point that must be debated here and now.

Why do we have a President for the country? When Mauritius was a colony, the British sovereign was the Head of State with a Governor as the representative. There was some sort of a democracy, some persons call it a mockery of democracy but then real democracy came to us in 1968 after the country became independent from Great Britain and of its sovereign. However, we were not really independent because we had retained the British monarchy as the head of our country. Much later, we became a Republic and the British Queen ceased to be the head of our country.

Several countries that had been British colonies but were independent had replaced the Queen with a President. All these countries have adopted a Constitution modelled on the British system except that the British constitution is an unwritten one whereas all the ex-colonies have written ones. In Great Britain, people rely on the judgments of the Courts and especially on unwritten Conventions which are closely adhered to by everybody concerned. In certain cases, certain laws have been passed by Parliament that form part of the British Constitution but we are not concerned with these at the moment.

Our President has replaced the British Queen and the powers of the President are similar to those that the Queen in England would have exercised as titular head of state. He acts on the advice of the Cabinet composed of his ministers, for he has to say “my government” and “my ministers” in all official functions simply because he appoints the Prime Minister and the Ministers. Therefore the government is the government of the President. The President is not a mere figurehead for he has certain specific functions that have been spelt out in the Constitution.

The British Queen will never think of indulging in politics because the government is her government and the opposition as well is her opposition. I am not aware of any judgment delivered by the House of Lords on this point, but the Convention will never tolerate the sovereign getting involved in active politics. The convention is so simple and so straightforward that nobody will ever think that an issue like this will even be a matter of dispute.

What is the opinion of Constitutional lawyers in, say, a country like India? I would advise those who are interested with the matter to read the different books on the Constitution of India written by Durga Das Basu who has been an expert in the matter. I have in mind especially his ‘Introduction to the Constitution of India’, 18^th edition. At page 188, we read: “Although there is no specific provision in the Constitution itself making it binding on the President to accept the advice of his ministers, it is hoped that the convention under which in England the king always acted on the advice of his ministers would be established in this country also and the President would become a constitutional President in all matters.” These words were pronounced by Dr Rajendra Prasad as the President of the Constituent Assembly, as he summed up the relevant provisions of the draft Constitution.

The Supreme Court of India said: “The President has thus been made a formal or constitutional head of the executive…” in the case of Ram Jawaya in 1995. This has since been reiterated in other cases. The President of India follows in the footsteps of the British monarch and he would not think of joining politics after his term of office has been completed or he resigns at any time.

I do not think that the President of a country like Trinidad and Tobago would think of entering in the political field once he is no longer the President. The system of governance we have chosen is very different from the presidential system and they cannot be compared with each other. If one day our politicians decide to change the system and they have the required majority, they can do it. But right now, we are operating in a particular system and we are bound to accept the rules.

By the way, the President says “my government and “my ministers” because of the Constitution. Can another person so address the government or the ministers? My opinion is that no other person has this right or this privilege to so address the government or the ministers for constitutional reasons.

The President as head of State represents the country as a whole and the population in its entirety. He cannot represent a part of the country or a part of the population. This is done by a politician who represents a constituency and the population of the area or some people in the area. The President cannot place himself in such a situation and the day he does it, he forgoes the right to be the President of the country.

So far as we have been told, we do not know whether our President is thinking of resigning to join the political party of his choice and to fight the next general election, which is scheduled to be held in 2015. The day he would so decide would be a sad day for all of us. We know all the privileges which his post carries and it would not do to say that the President decides to be a politician only when he no longer occupies the post of President and then he will give up all the benefits that a past President is entitled to. People cannot do what they like and the obvious example is a judge.

I have been informed that some persons who are interested with the question can seize the Supreme Court with a case to find out whether a past President can be a politician. Maybe they are right to get the pronouncement of the Supreme Court on the matter. And I have a feeling that the case will end up before the Privy Council eventually.

Can the recourse to the Supreme Court be started right now? Can those persons go for a declaratory judgment? Or should we wait for the President to resign and only then bring a case?

* Published in print edition on 30 March 2012