“The government cannot talk about the ‘New Normal’ but then conducts politics as usual”

Interview: Milan Meetarbhan

‘It cannot invoke exceptional circumstances when it adopts measures that take away rights and entitlements from the people’

* ‘The so-called new blood who pride themselves in being part of the ruling class has been most disappointing.
Their language, conduct, arrogance, intolerance, demagogy are often even worse than those of their elders’

* ‘The best constitutional safeguards are not always enough. Some authoritarian States have had wonderfully written Constitutions’

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Milan Meetarbhan, who is a constitutional lawyer as well as political observer and has served as the Mauritian representative to the UN in New York, shares in today’s interview his views on the manner in which the current regime is running the country, pointing out the dysfunctions and derogations from Constitutional principles which are causing prejudice to both institutions and citizens. For him, the primary responsibility for restoring the soundness of the polity rests squarely on the regime’s shoulders.

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Mauritius Times: Most governments govern with an eye on their popularity ratings; others do the right things notwithstanding such ratings. The current government here is pressing on with its agenda despite receiving a bad press; it seems to believe the majority of the electorate couldn’t care less about the rantings of journalists and intellectuals as regards perceived human rights abuses or threats to freedom of expression. It could well be right, don’t you think?

Milan Meetarbhan: First, does it have an agenda and, if so, which one? This is a legitimate question as many people wonder where we are heading. The Budget Speech was supposed to lay out the promised “new strategy”. But everybody was left wondering after the speech what the new strategy was. However, if we still don’t know what the policy strategy is – even if there is one – we can see what the political strategy is. The government must be acutely aware of the fact that even if it has a majority of seats in Parliament it clearly does not have majority support in the country. It believes that by ruling with an iron fist and holding the opposition up to ridicule, it will assert itself even if it could not do so at the polls. The recent manoeuvring to get one of its cronies at the head of a public institution by hook or by crook is but one illustration of how the government intends to rule.

The MSM was created by Anerood Jugnauth and Harish Boodhoo when they fell out with Bérenger. It had neither any ideological foundation nor a track record of any struggle for a cause. It is driven by the quest for power and perks of office. The MSM is run like a family-owned business and the spoils of office are shared first and foremost amongst relatives and other protégés. Such businesses do not have to worry about accountability and sentiments of shareholders. They may at times have to give in to commercial pressures to save their brand and market share. The MSM brand is built on an anti rather than a pro marketing campaign. It fought its first elections in 1983 on an anti-Bérenger campaign and its last election in 2019 on an anti-Ramgoolam platform.

There are no holds barred in its competitive strategy. Its unabashed use of a public institution like the MBC and its promotion of mediocrity and nepotism in public institutions speaks volumes about what the MSM stands for and its utter contempt for the media, for the opposition or public opinion.

* Whether politicians are required to be thick-skinned or not is really besides the point, since freedom of expression should not be equated with a licence to slander whomsoever – whether one is Prime Minister or any Harry — on Facebook or elsewhere, isn’t it? Who would want to see his/her photo, with an inconvenient message, dragged onto a porn site?

There are indeed restrictions to the constitutional right to freedom of expression. One such restriction may be imposed for the purpose of protecting the reputations of citizens. However, there are two issues. One is how to strike a balance between the public interest and the rights of individuals, and the other is whether the law is enforced equally with respect to all people or whether it is applied selectively.

Legal restrictions provided for a proper purpose can at times be weaponised. It is then used as an instrument of coercion or intimidation. When the law is applied unequally, the initial purpose of that law becomes blurred, and the law can no longer be supported by the people at large.

* A few people have lately been booked by the police for their posts with political comments on Facebook, that is for offences that fall under the purview of the ICTA Act. Does this mean that the provisions of the ICTA Act are so stringent that would allow for their abuse by the authorities, or are Facebookers not sufficiently alive to the need for responsible social media behaviour?

In any country, anywhere in the world we would be treading on a slippery slope if we were to justify state repression on the grounds of irresponsible social behaviour by the victims of authoritarianism. People must behave responsibly, for sure, but the legislators also have a duty to enact legislation that is acceptable in a democratic society. The Executive must act responsibly in enforcing the law. What is the justification for sending a squad of ten police officers at a lady’s home at 6 a.m. to arrest her for allegedly posting comments which “annoy” someone who belongs to the ruling party? To encourage responsible social behaviour or to stifle dissent and dissuade critics?

In Mauritius, there have been a lot of questions asked about the amendments made to the Information and Communication Technology Act in 2018 and whilst the validity of these amendments is yet to be tested before the courts, the government is announcing new amendments to further reinforce the law. I hope that our courts will adopt the approach taken by the Indian Supreme Court in its own review of the constitutionality of the definition of ICT-related offences.

* One would expect, as you also mentioned earlier, the authorities – be it the police and its Cyber Crime Unit, CCID, etc., ICTA, IBA… — to act with the same sense of fairness and alacrity whether the complainant happens to be a Minister or the average citizen. But that does not appear to be the case at all times whichever the party/alliance in power, isn’t it?

Before the elections, the Electoral Supervisory Commission (ESC) took the unprecedented step of declaring that there was prima facie evidence that the MBC might have breached the law. After nine months, we are yet to hear about what the IBA as the regulator for all radio stations including the MBC has done following the stand taken by the ESC. Yet the IBA Board could, when the country was under lockdown, resolve to act against TOP FM.

The Police has acted within hours of complaints made by members of the ruling party regarding posts on social media. Nine months ago, the President of the Labour Party gave a statement to the police about alleged criminal defamation by the MBC. We have not heard yet about action taken following this complaint.

Many people are convinced that the medical equipment scandal has brought home to Mauritians the implications of the debate on public integrity. Maybe this scandal had more impact on people across the board than any of the previous scandals in recent times, because people found out that while they were going through the traumatic experience of the pandemic those they trusted to steer the country in the right direction during those dark days might not have acted properly in the management of public funds.

This scandal therefore had a more direct impact on public opinion than previous ones. Yet instead of reassuring people by being fully transparent, Mauritians are learning about what happened, piecemeal, through leaks in the media.

The authorities have now decided to take prompt action against civil servants who are suspected of having leaked confidential information with regard to the medical equipment scandal. These authorities probably do not realise that by starting an investigation over the leak of confidential documents they have in effect conceded that (1) the documents leaked were genuine and did come from official sources, and (2) the use of public funds for the health sector ( as opposed to defence or homeland security) is deemed to be confidential information. They confirm in fact that there is No Fake News!

Is it not this very government which spoke of a new law to protect whistle blowers? If civil servants went to ICAC with these documents because they suspected wrongful conduct, as they have a duty to do under the Prevention of Corruption Act, would there have been any suspected criminal offence for the police to investigate?

* The Commissioner of Police is protected by the Constitution, which says that “in the exercise of any functions conferred upon him” he “shall not be subject to the direction or control of any other person or authority”. Yet what comes out very often especially in cases involving people in power and that generates popular discontent, is the classic “orders from above” story. Does it mean that the police do not enjoy the independence that has been made out?

The Constitution not only provides for the independence of the Commissioner of Police (CP) but also guarantees his security of tenure to bolster his independence. Indeed, constitutional guarantees for the independence of the CP was one of the demands made during the Constitutional talks leading to Independence and subsequently found its way in our Constitution.

The best constitutional safeguards are not always enough. Some authoritarian States have had wonderfully written Constitutions. What also matters is the people who are appointed to these constitutionally protected positions and their own view of the responsibilities of their office, of their personal integrity, of the sense of their duty to the people and the country they serve. What also matters is the effectiveness of the mechanism actually available to ensure compliance with the principles enshrined in the Constitution.

The change in variable parameters from one holder of an office to another may explain the different conceptions of independence.

* We have seen the judiciary applying the brake to the Executive’s attempts at neutralising those that are perceived by the political establishment to be its adversaries – like the one which targeted the DPP. Why does it therefore appear that our judges seem to have more leeway and enjoy a greater measure of independence than the Commissioner of Police?

Our Judges do take the independence and impartial exercise of their functions seriously. I believe that in spite of the improvements yet to be made in terms of access to justice, speedy resolution of disputes and so on, our judiciary is still considered as le dernier rempart against what a former British Lord Chancellor called the “elective dictatorship”.

Whilst we cannot in this country have the equivalent of a Tribunal Administratif as in the French system, we should consider the advisability of having a dedicated bench of the Supreme Court that deals with Public Law. This would enable citizens to have recourse to a specialised court that deals with grievances against the State and public institutions in matters that presently come under both Administrative Law and Constitutional law. It will consolidate and reinforce judicial protection of the rights of the citizen. This dedicated bench would also ensure oversight of regulators and constitutional offices.

Democracy needs to be continually perfected and the appointment of this dedicated bench will go a long way towards perfecting our democracy and protecting the rights of our citizens.

* But both the Commissioner of Police and the Chief Justice – or even the DPP — are in the strict technical sense civil servants and are thus liable to administrative control, right?

The Constitution provides for security of tenure for all the three positions you mentioned. Holders of these positions cannot be removed from office by the Executive and can only be removed after an investigation conducted by an independent tribunal. In the case of a Judge there must, in addition, be a decision of the Judicial Committee.

However, in the case of the CP and the DPP, their acts and omissions may in certain circumstances be subject to judicial review by the Supreme Court. In the case of a decision made by Judges, there may be a right of appeal to a higher court. In some cases, Judges may be removed subject to the procedural safeguards just mentioned.

* On the other hand, one can draw up a long list of scandals that have hogged the headlines recently, about the curtailment of freedoms, about the threats to freedom of information and freedom of expression or about the contested conduct of current parliamentary proceedings, but there does not appear to be much that the opposition, the press and civil society can do about it. Is that indeed the case?

In a parliamentary democracy it is not only the opposition that has to ensure that the executive is accountable to the people, this is also the role of backbenchers of the ruling party. In Mauritius, there has been a total abdication, save in some exceptional cases, of their duties by backbenchers. Recently, when the opposition was expelled from the Assembly by the Speaker and could not therefore participate in proceedings of the Committee of Supply – which is a once-in-a-year opportunity to ensure accountability of ministers for the budgets of their respective departments – the whole exercise was over in some fifteen minutes because the backbenchers who were still allowed to participate in the debates did not deem it fit to exercise their responsibility in a parliamentary democracy.

I must say that though we keep talking of the need for new blood in the political class, and rightly so, the conduct and performance of many of the so-called new blood who pride themselves in being part of the ruling class has been most disappointing. Their language, conduct, arrogance, intolerance, demagogy are often even worse than those of their elders. The staunch defence of current parliamentary proceedings by some of the new faces on the block shows that there is nothing new except for the faces.

* The main opposition parties – the Labour Party, MMM and PMSD – seem to believe that the only way out from the current political impasse can only be a political solution – thus the recent initiative to join forces to challenge the government. But they do not seem to have the wind in their sails, don’t you think?

We have often heard members of the majority decry the opposition for being divided. When the opposition parties in spite of their backgrounds and histories put up a common front, this is treated with derision by the same people.

I must say that the people no doubt expected that the regular warnings from the government about exceptional times resulting from the expected downturn in the global economy and the major consequences of the pandemic would be followed by concrete action to keep the nation focused on a clear united strategy to face the major challenges ahead. Instead, the treatment meted out to the opposition and the media and even to those poking fun on social media shows anything but a sincere desire for unity in the face of adversity. The language is one of discord and not the one of unity required in exceptional circumstances. The language is often one of levity when it is not purely and simply derision, rather than one of seriousness of purpose.

The government cannot invoke exceptional circumstances when it adopts measures that take away rights and entitlements from the people or talk about the “New Normal” but then conducts politics as usual.

Many people were shocked that whilst concerns about the pandemic were at their peak during the confinement, MSM ministers still produced and broadcast a video purportedly marking the 37th anniversary of the MSM. This highly partisan propaganda à la gloire of their current leader paid little respect for the man who founded the party 37 years ago and who led it for three decades. This shows clearly what was the intent of the video made by Ministers who could afford to take time off during a crisis to record their encomium of their current leader.

The time now, more than ever, is for the nation to work together for clean, transparent and efficient governance for the common good at a juncture when we are faced with serious challenges. It is those who are currently in office who shoulder the primary responsibility to ensure that this happens.

The opposition parties which have put aside their differences to work together have taken their own responsibility more seriously.

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* Published in print edition on 4 August 2020

Tags:Administrative Law, Anerood Jugnauth, Bérenger, British Lord Chancellor, CCID, Commissioner of Police, Communication Technology Act, Constitutional law, Constitutions, Cyber Crime Unit, DPP, Electoral Supervisory Commission, Facebook, Fake News, Harish Boodhoo, IBA, ICTA, Indian Supreme Court, Interview Milan Meetarbhan, Labour Party, Mauritius Times, MBC, MMM, MSM, PMSD, Prevention of Corruption Act, Public Law, Ramgoolam, Tribunal Administratif