If there is any doubt, then we owe it to our Constitution and our democracy to have our highest court test the question
This week saw eleven Justices of the United Kingdom Supreme Court sitting over four days to hear arguably the most significant question about the British constitution in recent times. The essential question for the Supreme Court is whether the British government requires the prior authority of its Parliament to begin the process of leaving the EU. It is a question about the scope of the Queen’s ‘prerogative powers’, as are now exercised by her Government.
The importance of this question is reflected by the fact that the bench is constituted of eleven of the country’s highest judges, not the usual five judges. The significance of the case is also matched by the intricacies of the arguments offered by the country’s foremost constitutional lawyers. To top it all, all this can be watched live from the Supreme Court’s own video feed online.
Like the British, we too are facing a delicate and intricate constitutional question – perhaps the most important of our time. Again like the British, our constitutional question finds its root in the remnant prerogative powers of the once powerful British kings and queens that found its way in our written Constitution. This is of course the question of the appointment of a Prime Minister.
However, unlike the British, the dominant view, peddled by some members of the political class, including the Leader of Opposition, who are not by any stretch constitutional law experts, is that the answer to the question is a foregone conclusion. Theirs is a simplistic and literal interpretation of a section or two of the Constitution, whereas constitutional interpretation is far more subtle and complex.
Unlike the British, and even more worrying, our foremost independent lawyers and the Bar Association have remained silent. Anywhere else in the world, think India or South Africa, let alone the United Kingdom, this question would have been litigated no end. Our Constitution empowers the Supreme Court to determine any question on the Constitution – why then is this not being tested? Unfortunately, political expediency trumps everything else in Mauritius.
The appointment of a new Prime Minister mid-term raises several constitutional law questions.
Suppose we accept the proposition, which is itself arguable, that the President is to appoint the Member of the Assembly who appears to her best able to command the support of the majority of the Members of the Assembly.
This approach would be similar to the once absolute prerogative of the kings and queens of the United Kingdom in selecting and appointing the British Prime Minister, on whatever be their considerations. King Edward’s choice of Arthur Balfour to succeed Lord Salisbury in 1902 seemed a foregone conclusion, especially since Balfour was the nephew and the choice of the outgoing Prime Minister and the Monarch was suspicious of the radical alternative in Joseph Chamberlain.
Does it mean to say that our President would enjoy such an unfettered discretion? This can be seriously doubted, especially given how even in the United Kingdom, it is accepted now that the exercise by the Monarch of her prerogative powers are open to judicial challenge, but also in view of section 1 of the Constitution that provides that Mauritius is a democratic state.
That being the case, can the President simply select the leader of the party that holds the majority of members in a political alliance in government, when it was the alliance, and not the said party that registered under paragraph 2 of the First Schedule of the Constitution at the last general elections? What about the deputy leader of the said alliance, who is not only the Deputy Prime Minister, but has also deputised for the Prime Minister without difficulty on a record number of occasions? There is indeed no suggestion by any member of the alliance that they would not support the deputy leader of the alliance. If anything, the parties of the alliance now accept that the question of succession was never discussed before the elections.
But more importantly, shouldn’t the President also consider the fact that the outgoing Prime Minister’s choice is his own son, who is still awaiting the final outcome of a court case where he stood accused on corruption charges? Would the objective bystander consider that person as the best choice? Would the reasonable and objective President, protected from political imperatives or persuasion, consider this the best course?
If it is counterintuitive that the appointment of the outgoing Prime Minister’s own son is democratic, then surely a Constitution that expressly enshrines democratic values in its very first and essential section cannot be read to endorse such a result.
If there is any doubt, then we owe it to our Constitution and our democracy to have our highest court test the question.