“The President of the Republic must uphold the Constitution and the rule of law”

Qs & As

* ‘Once the President is appointed, he is not accountable except if he is mindful of public opinion’

By LEX

The President of the Republic became the nominal guardian of our Constitutional rights when the Republic of Mauritius was founded, yet the vestigial assent of the Sovereign through the appointed Governor-General before an Act becomes law, has not been scrapped. As guardian, his powers and room for action when uncomfortable with a piece of legislation or with some nominations that require his formal assent, are limited. Lex delves on these and other questions.

* It has not taken long for the President of the Republic, Prithiviraj Roopun, to give his assent to the Independent Broadcasting Authority (Amendment) Bill. Could he have done otherwise?

The assent was done with lightning speed as if the house was on fire. According to the Constitution, the President must uphold the Constitution and the rule of law. Upholding the Constitution means upholding the fundamental rights embodied in the Constitution.

* In what circumstances can the President of the Republic refuse to give his assent to a Bill submitted to him?

It is always open to the President – as a matter of convention and not law -to ask Parliament to review a piece of legislation submitted to him for his assent. How he does it and when he does it, is up to him. If he asks parliament to review the legislation and the Bill is submitted again to him in its original version, he has two choices: either he gulps down the reservations he had down his throat and gives his assent and thus keeps his job or he refuses to give his assent and resigns. If he does not, then he may be removed by Parliament. His refusal may be viewed as an act of misconduct or a violation of the Constitution.

* Former President Cassam Uteem resigned in February 2002, after refusing to give his assent to the anti-terrorism bill, PoTA. The former President and the Executive were clearly not on the same wavelength as regards the issue of terrorism and how to deal with it. But it also points to the supremacy of Parliament over other institutions of the State. Is that correct?

It is a fallacy to talk of the supremacy of parliament in Mauritius. In the United Kingdom, parliament is supreme as there is no written constitution to check its powers except for the provisions of the Magna Carta.

In contexts where a written Constitution exists, Parliament may make laws subject to the Constitution. In other words, no law should infringe the Constitution. This is why in a written Constitution we talk of constitutional supremacy and not parliamentary supremacy.

* What’s the rationale of requiring the President of the Republic – one not elected by popular vote – to give his assent to a piece of legislation submitted by the Executive to Parliament, and from where do we draw that tradition?

It is as a result of blindly copying the Westminster model of government notwithstanding the fact that we have a written Constitution. In the United Kingdom there is constitutional convention that requires that a Bill passed by Parliament must be assented to by the sovereign. This is all part of the historical evolution of government in the United Kingdom.

When the United Kingdom granted independence to her former colonies, these newly independent States were given a written Constitution with a Prime Minister and a Governor General (as representative of the sovereign). That representative had to give his assent to a bill voted by parliament; the tradition has been perpetuated with the advent of the Republic with the president replacing the Governor General.

* There are instances where the law requires the President of the Republic to act ”on the advice” of, and in other instances ”after consultation” with the Prime Minister. What are the implications of and the rationale for these two constitutional provisions?

This is what the Constitution says:

‘In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet except in cases where he is required by this Constitution to act in accordance with the advice of, or after consultation with, any person or authority other than the Cabinet or in his own deliberate judgment.’

As far as the requirement of ‘advice’ is concerned, the president is bound to follow that advice though he may ask cabinet to reconsider the advice.

On certain matters, the president should act ‘after consultation’, but that provision in the Constitution is either ridiculous or is of no effect. In fact, notwithstanding the fact that this provision is present in the Constitution, whether the president has indeed acted in consultation with anybody or not cannot be questioned in court. So, what is the point of such a provision?

On some matters, the President can in the exercise of his functions act ‘in his own deliberate judgment’. In other words, he does not have to act on the advice of or after consultation with any person or authority other than the Cabinet. But behind the scene, it is unlikely that a President will not seek advice before acting albeit in his own deliberate judgment.

* Our Constitution, coming in the wake of the divisive political battles prior to Independence, is said to have been cut to ensure the dominance of the Prime Minister over the affairs of the State, the cumulative effect of which can result in damage to good governance, growing politicisation of the civil service, etc. Are there sufficient checks and balances on the powers of the Prime Minister?

The first question one has to address is whether this has served the interests of the country well. The answer to that question is: Yes and No. Giving absolute executive powers to a Prime Minister and making him an omnipotent ruler may guarantee stability in the government as he can, as a result, wield his authority over his troops and pre-empt any temptation by his troops to blackmail him. That presupposes that he has a comfortable majority in the House.

The only check on the powers of the Prime Minister is parliament in that backbenchers on the government side may try to check and curtail the powers of the Prime Minister. This is not likely to happen in Mauritius, especially in the present political context where backbenchers are seen to be blindly following the Prime Minister. In any case, should backbenchers rebel against the Prime Minister, they will surely pay a heavy price by being denied a ticket at the next elections.

The other check on the powers of the Prime Minister may come from the Opposition… but we know that these days the Opposition is totally powerless what with the Speaker’s actions and conduct perceived to be suppressing any dissent from the Opposition benches.

So, at the end of the day, the Prime Minister is the one who holds absolute power.

* At one time, the Prime Minister could direct the then Governor-General through advice to grant his assent to legislation, to dissolve and prorogue parliament, to call elections and to make government appointments, which the Governor-General would follow according to convention and the law. There is not much that has been modified after Mauritius has become a parliamentary republic and that renders the PM less powerful, isn’t it?

Nothing has changed. The Prime Minister is still all powerful through the advice he tenders as well as with regard to appointments and the dissolution of parliament.

* What about the President of the Republic? Is he is sufficiently accountable to the people and to the Parliament that nominated him?

Once the President is appointed, he is not accountable except if he is mindful of public opinion. The only restriction is that he can be removed for misconduct or violation of the Constitution. But that would be very difficult to establish.

* Is the President entitled to absolute immunity from legal liability for civil damages based on his official acts? And does this also hold true for his personal acts?

 

The Constitution says that no civil or criminal proceedings shall lie against the President or the Vice-President in respect of the performance by him of the functions of his office or in respect of any act done or purported to be done by him in the performance of those functions. What is the extent of that immunity remains to be seen until a court of law gives some guidance on this issue?

* What about criminal offences?

It stands to reason that if a president commits a criminal offence, not related to his functions, and he would not be immune to prosecution. At any rate in such a situation he will have to resign

* In other words, there is no reason as to why the President of the Republic should be above the law, right?

Certainly not. There are many decisions that he takes in the exercise of his functions that may affect individuals when he acts on the advice of the Cabinet. These should be amenable to the jurisdiction of the courts.


* Published in print edition on 7 December 2021

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