By SR Balgopal
Lindsay Morvan of the PMSD had the following views to express following the reconstitution of the Public Service Commission (PSC) Board by the President of the Republic, Sir Anerood Jugnauth:
« Le PMSD tient à exprimer son grand étonnement et sa déception devant le fait qu’il n’y ait aucun créole parmi les membres de la PSC reconstituée.
It is apposite to recall that the PSC is a body which is a creation of our Constitution. Article 88 of the Constitution provides for the creation of the PSC and reads as follows:
“88 Public Service Commission
(1) There shall be a Public Service Commission, which shall consist of a Chairman, 2 Deputy-Chairmen and 4 other Commissioners appointed by the President.
(2) No person shall be qualified for appointment as a Commissioner of the Public Service Commission if he is a member of, or a candidate for election to, the Assembly or any local authority, a public officer or a local government officer.
(3) Where the office of Chairman of the Public Service Commission is vacant or the Chairman is for any reason unable to perform the functions of his office, those functions shall be performed by such one of the Deputy-Chairmen or Commissioners of the Commission as the President may appoint.
(4) Where at any time there are less than 3 Commissioners of the Public Service Commission besides the Chairman or where any such Commissioner is acting as Chairman or is for any reason unable to perform the functions of his office, the President may appoint a person qualified for appointment as a Commissioner of the Commission to act as a Commissioner, and any person so appointed shall continue to act until his appointment is revoked by the President.
(5) The functions of the President under this section shall be exercised by him after consultation with the Prime Minister and the Leader of the Opposition.”
Pursuant to article 89 of the Constitution, the PSC has, inter alia, the duty to appoint and remove officers in the civil service and it also exercises disciplinary functions over public officers. The powers of the PSC may be delegated to any Commissioner or any public officer. It may be gleaned that the framers of our Constitution considered the PSC a body so important that the members of the PSC could only be appointed after the President has consulted the Prime Minister and the Leader of the Opposition. The final choice of the members vests in the President only as the President only needs to consult the PM and the Leader of the Opposition and he is not bound by their views. In addition, article 92 of the Constitution reinforces the security of tenure of Commissioners of the PSC by setting out a very tight framework guaranteeing their independence. If this were not enough, it is important to recall that, according to regulation 12 of the PSC regulations, every Commissioner shall, on appointment, take oath in the form set out in the second schedule. The oath reads as follows:
“Oath of Commissioner
I, …, having been appointed as Chairman/ Deputy Chairman/Commissioner of the Public Service Commission do swear/solemnly and sincerely declare and affirm that I will without fear or favour, affection or ill-will, discharge the functions of the office of Chairman/Deputy Chairman/Commissioner of the Public Service Commission, and that I will not, directly or indirectly, reveal any matters relating to such functions to any unauthorised persons otherwise than in the course of duty.
Sworn/affirmed before me this … day of …. 20..
Judge of the Supreme Court”
What the above indisputably establishes is as follows:
(a) The PSC is a constitutional creature;
(b) The mode of appointment of its members is provided for by the Constitution and is vested in no less an important figure than the President of the Republic, who is above party politics;
(c) The Constitution guarantees security of tenure to members of the PSC;
(d) The PSC is entrusted with wide powers and its independence is guaranteed by the oath taken by its members;
(e) Members of the PSC are independent.
In addition to the above, the Constitution provides three further safeguards:
(a) Decisions of the PSC may be challenged before the Public Bodies Appeal Tribunal (PBAT);
(b) Decisions of the PBAT may in turn be challenged by way of Judicial Review before the Supreme Court;
(c) Judicial Reviews of the Supreme Court may be challenged before the Judicial Committee of the Privy Council.
In view of what has been adumbrated above, the statement of Mr Morvan appears less eloquent and less damaging than it initially does… What is being implied by Mr Morvan is that every component of the so-called Mauritius “rainbow nation” should be represented at the PSC, a Constitutional and independent body. Is Mr Morvan implying that there needs to be a Creole on the Board of the PSC for the PSC to discharge its Constitutional functions effectively? If what Mr Morvan is implying is carried to its logical conclusion, then every other component of the Mauritian society should be represented on the PSC and other constitutional bodies.
Hindus may claim that they are not a unitary community and that every major caste has a right to be represented, Muslims may stake a similar claim, so can the Guajarati, Tamil, Telegu and Marathi communities also stake their claims for representation. Fortunately, nobody has, as yet, followed the way in which Mr Morvan presents the situation for, if we were to apply this warped logic, we would be going for the balkanization of the Mauritian community.
It is also to be noted that up to now, nobody has raised an essential flaw in Mr Morvan’s statement to the effect that the President, did initially, not appoint any Creole on the PSC board. Firstly, the concept of Creole does not exist in Mauritius and our Constitution refers to “Population Generale”. It may be the case that Mr Morvan used the word “Creole” advisedly as a member of his party, Minister M. Sik Yuen has been allocated a seat which would have otherwise gone to a member of the “Population Generale”, as everyone understands the term to mean in its Mauritian context, i.e. “Creole”, by a legal subterfuge whereby he described himself as a member of the “Population Generale”. If Mr Yeung Sik Yuen John Michael Tzoun Sao can be a member of the “Population Generale” as opposed to being a member of the Sino-Mauritian community for the PMSD, why can’t Mr Chan Kam Lon, not be seen by the PMSD’s eyes in the same light as Mr Yeung Sik Yuen John Michael Tzoun? Readers will draw their own conclusions on the stand of the PMSD on the representation of Creoles at the PSC, in the light of the allocation of a best loser seat to Mr Yeung Sik Yuen John Michael Tzoun.
If we were to push Mr Morvan’s logic further, should we be looking at whether the Judges of the Supreme Court represent a fair cross-section of the Mauritian nation when we all know the fierce independence of our judiciary? Should Permanent Secretaries or public officers be appointed according to ethnicity rather than qualifications? Maybe the PMSD should qualify Mr Morvan’s statement…
* Published in print edition on 5 August 2011