“When democracy is perverted for short-term political gains at a time of serious global crisis, we all apprehend an uncertain future”

Interview Milan Meetarbhan

* ‘Opposition parties cannot come together only because they want the MSM out.
They can come together only if they agree on a common programme for alternative policies and commitments’

* ‘In our constitutional regime, there is no reason why the judiciary cannot act as a check on the legislature’

The events that have hit the headlines over the last couple of weeks raise a number of legal and constitutional issues: the powers of the Speaker, the report of the Britam Commission and the setting up of a new Betamax Commission, the appointment of an Acting Police Commissioner and accountability for the use of public funds. We asked Milan Meetarbhan, a Barrister with a focus on Public Law and author of a book on Mauritian Constitutional Law to comment on these topical issues. We also asked our guest who is also a political strategist to comment on the political context of the current public debates. read on:

Mauritius Times: Your earlier comments on democracy and institutions would suggest that your assessment of the current state of our democracy would be quite critical. Is that correct?

Milan Meetarbhan: On Saturday last, 7 August 2021, it was exactly 54 years since Mauritians were asked to vote in the most crucial election in our country’s history. A majority of voters elected a government which moved for Mauritius to become a sovereign State. We were then given a Constitution that proclaimed that the country would be a “sovereign democratic” State.

What is the state of our democracy after 53 years of independence and after major advances worldwide with regard to democracy, governance, accountability and transparency?

Mauritius opted for a constitutional regime based on parliamentary democracy. 53 years ago, we had Harilal Vaghjee as Speaker and where does our Parliament stand today? Do we have more accountability or less? Two weeks ago, the Minister of Finance stood up in the Assembly and said he cannot give any information on how 80 billion of public funds have been spent or will be spent. Do we have more accountability and transparency or less?

Over the last year there have been negative reports on Mauritius in the international media over MV Wakashio, over the ICTA proposals to intercept social media traffic, over what’s happening in Parliament. One EU funded European institution has in its 2021 Democracy Report stated that that Mauritius is one of the three countries to have joined “the major autocratisers”. Following the ICTA proposals, several NGOs, academics and media across the world denounced the first country to propose such drastic control of social media. Only last week, the World Bank published the Supreme Audit Institutions Independence Index which does not put our country in the list of countries where independence of institutions is Very High or High but only in the third group where it is “substantial”.

We know that the Director of Audit whose duties are laid down in the Constitution has been denied access to certain information. We live in a country where a corruption agency takes over ten years to investigate an allegation against a prime minister, over five years in the case of a former Attorney general and we don’t know how long it will take to conclude its investigation of a former DPM allegedly named in a report by a reputed international organisation.

This is the state of our democracy today at a time when the world including our own country are facing serious challenges. Very serious challenges not only because of the pandemic and its resulting economic crisis but also because of the dire forecasts about the impact of climate change. The UN panel pointed out this week that climate change is happening faster and is more severe than expected. The latest UN report is being described as the starkest warning yet on climate change.

Whilst small countries like ours cannot do much to influence the course of events on these global issues (except to some extent through some regional or interest groups like AOSIS – Alliance of Small Island States – for climate change) yet governments should at the national level ensure that we can on the one hand mitigate the consequences of these global challenges and on the other hand not adopt policies for short-sighted political gains which only make these consequences still harsher for the country.

We know that there were worrying signs for our economy before Covid-19 and indeed before the 2019 elections. Yet the ruling party went to the polls boasting about its record and promising more largesse. When democracy is perverted for short-term political gains at a time of serious global crisis, we all apprehend an uncertain future.

* In the wake of what has been happening lately in Parliament, many people have been asking for reforms to the Standing Orders of the National Assembly. Will that help to give Parliament back the respect it deserves?

Standing Orders, like many other practices and procedures inherited from the colonial power, certainly need to be updated and perfected. But the wide discontent with the present conduct of parliamentary proceedings does not result from the imperfections of the Standing Orders. Both the Executive and the Chair are acting in an unprecedented manner which changes the nature of our parliamentary democracy.

We should remember that under the same constitutional provisions and the same Standing Orders we have had Speakers like Ramesh Jeewoolall, Kailash Purryag and Razack Peeroo who have conducted proceedings in a totally different way from what we have witnessed lately.

The current parliamentary proceedings epitomize MSM culture. The Speaker was nominated by Pravind Jugnauth who subsequently elevated him to the highest distinction of the country. As I have stated before, the responsibility for the present state of things in the Assembly lie squarely with Pravind Jugnauth. I am glad to note that over the last week both the MMM and the PMSD have said exactly the same thing. I believe that the focus on the Speaker is misplaced. We have to look elsewhere to understand what’s happening and who is responsible for the downgrading of Parliament not only in terms of the conduct of proceedings but also in terms of the increasing lack of accountability of the Executive to the Assembly.

It’s not only about the Chair but also the manner in which the Executive is dealing with parliamentary affairs. Refusal to answer some questions or protracted answers to some other questions to avoid embarrassing questions on the agenda, getting the opposition to speak at late hours or early hours in the morning so that the government speakers can monopolise prime time, avoiding sittings on Tuesdays when MPs can ask questions. All this is the doing of the Executive. So, we have both the Executive and the Chair appointed and supported by the Executive which are responsible for where our National Assembly stands today.

I note with concern that Avinash Teeluck, a former Labourite, who is probably emerging as the more decent face of the MSM, said that he took at face value the Speaker’s statement that he was only joking when he aggressively repeated 11 times “Look at your Face”. If parliamentarians express unqualified and unconditional support for a Speaker and take at face value the ex post facto rationalization of a shameful act, then who should act as a check?

* There is also the view that the Standing Orders and the powers of the Speaker cannot be incompatible with the Constitution. But it remains to be seen if the Supreme Court will intervene if the actions of the Speaker go against the Constitution in light of the doctrine of parliamentary supremacy?

The Constitution is the supreme law of the land. Section 48 of the Constitution which provides that the National Assembly may regulate its own procedure also expressly provides that this power is “subject to the Constitution”. Ultimately, it is for the judiciary to decide if a law adopted by the Assembly and a fortiori, rules of procedure made by the Assembly and application of these rules are consistent with the Constitution or not. The conduct of proceedings is governed by rules and the ultimate authority which can decide whether such conduct is consistent or not with the Constitution is the judiciary.

We do not have parliamentary sovereignty as in the UK. It is now settled law in Mauritius that even the decisions of the DPP, who is given wide discretion and protection under the Constitution, can be subject to judicial review. Why should those of the Speaker be exempted? Should a Speaker have unfettered discretion and not be subject to any form of control except by those who appointed him?

It’s true that the concept of a democratic state is underpinned by the doctrine of separation of powers. But the doctrine also provides that each separate and independent organ acts as a check on the other. In our constitutional regime, there is no reason why the judiciary cannot act as a check on the legislature. It can quash legislation duly adopted by the Assembly but it cannot quash a decision of the Speaker or a disciplinary action taken by a political majority against a member of the opposition? Who then does the opposition member have recourse to when there is an arbitrary decision, if it’s not the Supreme Court?

* As a lawyer focusing on Public Law, what is your view of the report of the commission of inquiry over Britam and the appointment of another commission of inquiry over the Betamax case?

I believe that the appointment of a Commission of Enquiry (CoE) over Britam raises a number of questions at different levels: legal, institutional and political.

In purely legal terms, in what circumstances would it be in order to appoint a CoE after a matter has been thrashed out by the highest courts of the land? For example, after Pravind Jugnauth was cleared of all charges in the Medpoint case when he won his appeals before the Supreme Court and the Privy Council, would it still be in order for a future government to set up a CoE over this matter? Would it be in order to appoint a CoE to investigate the manner in which the case was conducted and in particular the role of certain law enforcement or investigative agencies?

At the institutional level, if the Executive which has the discretion to set up a CoE obstinately refuses to do so in certain cases which involves its own members but only does so in other cases where its political opponents may be involved, this not only constitutes a blatant abuse or misuse of its powers but it also runs the risk of CoE’s being perceived as a political instrument. Given that sitting judges are often asked to chair CoEs, doesn’t the perception that these commissions, in fact set up for political reasons, may put these judges in an embarrassing position?

At the political level, it could be argued that the government has once again scored an own goal with the Britam report. The CoE on Drugs named a number of people close to, or are part of, the MSM. The CoE on Britam has highlighted serious lapses of a dysfunctional government in 2015. The report is to that extent an indictment of the MSM government.

People were outraged after they found out that taxpayers had to foot a 6-billion-rupee bill because of the MSM’s ineptitude in handling the rescission of the Betamax contract and subsequent litigation. The setting up of a CoE might have been a Machiavellian attempt at digression and public opinion management, but it could turn out to be yet another own goal.

* On the other hand, what do you make out, again from a Public Law perspective, of the comments being made about the fact that government has appointed only an Acting Commissioner of Police and not one in a substantive capacity?

The post of Commissioner of Police (CP) is not only one which is protected by security of tenure i.e., the holder cannot be removed except if an investigation is carried out by a specially appointed tribunal but also the Constitution specifically provides for the independence of the CP.

Why appoint an acting CP? Is an acting CP entitled to the same protection afforded to someone holding the position in a substantive capacity? Some have said that there is a precedent for this situation when Mr Feillafe was appointed acting CP. This is wrong. At the time, the substantive holder was suspended and of course no one could be appointed as CP until and unless the post became vacant. The situation today is different. The post is vacant following the retirement of the CP and there is no reason why someone should not have been appointed in a substantive capacity.

Of course, there is much speculation as to why the regime chose this route. We have been told that the acting CP will be on some sort of probation and will be confirmed if his performance is satisfactory. Really? Will satisfactory performance mean compliance with “instructions from above”? Who will decide on satisfactory performance, the Prime Minister or the DFSC? Is this appointment in fact a stop-gap measure since the regime could not decide who amongst its protégés should be appointed and therefore went for an interim appointment until it could sort this out?

If the CP who holds a constitutional post can be appointed in an acting capacity and the Executive will then assess his “performance” before he can be appointed in a substantive capacity, then what about other holders of constitutional positions? Can judges, the DPP, the Director of Audit be similarly appointed in an acting capacity and their performances evaluated (and by whom) before they are appointed in a substantive capacity?

In any case, this is yet another illustration of how the regime plays around with fundamental constitutional norms.

The main question we have to ask ourselves is whether the constitutional protection and independence of the CP have been waived by ensuring that there is only an interim CP? The CP is appointed by the DFSC after consultation with the PM. Who decided that in this case only an acting CP should be appointed? Did the DFSC make such a recommendation?

* Attention has been diverted from the controversy regarding the disbursements of the MIC with the release of the Britam report four years after it was set up and the setting up of the Betamax commission of inquiry. The Minister of Finance has refused to disclose the beneficiaries of loans dished out by the MIC on the basis of the confidentiality clause in the loan agreements. Does he have a point there?

The Government invokes confidentiality in its agreement with a foreign government, it invokes confidentiality in its procurement contract for what it calls Safe City and now it invokes confidentiality in loans granted out of public funds. It says that the beneficiaries have asked for a confidentiality clause in the loan agreements. If that’s so, then those who claim public funds for their businesses facing economic difficulties also have the leverage to demand confidentiality!

Ministers keep shielding behind the fact that the entity dishing out the loans is a company. But who are the ultimate shareholders of the company? Don’t they have a right to know? It should also be pointed out that since stress is being laid on the fact that the vehicle used for procurement or for granting loans are companies incorporated under the Companies Act, then there may be circumstances which give rise to personal liability of the Directors of the companies concerned.

* At the end of the day, the Government gives the impression of remaining undisturbed by the criticisms of its decisions from different quarters. It presses ahead, it appoints other commissions of inquiry, or diverts attention from the unpalatable to other issues likely to embarrass opposition members. The opposition seems unable to work its way out of this tricky situation. Your comments?

I must say that, after the public outrage over the procurement contracts during the first lockdown last year, I was expecting the government not to have a change of heart or a cultural shift because that would be out of form for the MSM, but at least to try – not for reasons of statecraft but for purely political reasons – to be seen in a different light with regard to its management of public funds. But I now realise that they have not deemed it necessary to even change the optics. They couldn’t care.

The control and accountability must come from outside if it will not happen from within. The people must therefore look to the Public Accounts committee, the Director of Audit, the Supreme Court and international institutions to ensure proper governance and accountability.

* On the other hand, there is no clear indication of what the majority of the people feel about the current situation. Most also appear undisturbed; the planters, large and small, and pensioners, etc., are content with what the government is dishing out in terms of assistance and allowances, so you better not talk to them about the threats to democracy… What do you make out of this stalemate?

It is true that in any society there are segments of the electorate who will vote mostly on bread-and-butter issues and others who will consider issues like governance, transparency, protection of rights, etc. The truth of the matter is that at the end of day the cost of poor governance, nepotism, corruption, and so on is borne by the whole population at some point. Opinion leaders and political parties have to make sure that this is driven home to everyone.

* The next elections are three years away, and there is no indication as yet as to whether the Court will reject or not the electoral petitions. We have seen in the meantime the government remaining united against a divided opposition. how do you see things evolving till the next election?

Theoretically the next elections should be held in 2024 when the mandate of the present Assembly runs out. But that does not mean that no elections could be held earlier. After the 1982 elections, the government held 100% of the seats but Mauritians were called to the polls again one year later in 1983.

I believe that opposition parties in Parliament currently have a working relationship and that can make them more effective.

Opposition parties cannot come together only because they have a common adversary and they want the MSM out. The parties can come together only if they agree on a common programme for alternative policies and commitments. They have not done that yet. So, let’s not put the cart before the horse.

As far as the electoral petitions are concerned, I believe that whatever the Supreme Court decides, there is likely to be an appeal to the Privy Council. Even if the Privy Council acts diligently, the final decision is not likely to be known anytime soon. Our country needs to seriously consider procedural reforms regarding electoral challenges to ensure timely decisions on the validity of elections and the legitimacy of those exercising executive and legislative powers.

* Finally, there has been a lot of concern expressed lately about the sustainability of the free press in Mauritius. How can we ensure that we not only have freedom of the press but that the media can still play an important role in our country?

According to several opinion polls, many people believe that several of our institutions are now weaker than ever. People cannot trust these institutions to ensure a functional democracy. In this climate of despair, the media have a more important role than ever. The independent media can keep a government on its toes and hold it accountable.

The public service broadcaster is now beyond the pale. It has stooped so low that it is beyond redemption. In these circumstances, the private media have a higher responsibility. Today we have citizen journalists on the net and there is a lot of information shared on social media. We know that there have been attempts to stifle dissent on social media.

The independent media, both print and broadcast media, are more than ever crucial to the future of our democracy. The commercial pressure on the print media with the advent of technology and various forms of mass communications is enormous and the people as the ultimate beneficiaries of a free and independent media must provide the support needed.

* Published in print edition on 13 August 2021

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