“Death penalty is not the answer to the degradation of law and order or to drug trafficking”

Strengthening Democracy and Accountability: Questions for the Constitutional Review Commission

Qs & As

* ‘Mauritian voters often base their choices on material benefits or communal and caste affiliations. How, then, can truly secular elections be ensured?’

By Lex

In light of the government’s decision to set up a Constitutional Review Commission, we have drawn on Lex’s legal and constitutional expertise to examine key issues likely to be addressed by the Commission. These include reinforcing the balance of power among the executive, legislature, and judiciary; considering mechanisms such as referendums or recall provisions to enhance accountability; reforming electoral and representation systems; and ensuring the independence and transparency of constitutional offices such as the DPP and the President.

Addressing these questions requires careful consideration of international best practices alongside Mauritius’ unique political, social, and cultural context. The following Qs & As highlight critical areas for the Commission’s focus, balancing reform needs with practical and political realities.

* Is there a case for the Constitutional Review Commission to examine the balance of power among the executive, legislature, and judiciary, and to consider ways of strengthening checks and balances, accountability, and transparency within our governance framework? If so, are there specific areas on which the Commission should focus its attention?

The balance of power among the executive, legislature, and judiciary is maintained through a tripartite system of checks and balances, where distinct and independent branches prevent the undue concentration of authority.
Strengthening accountability requires reinforcing judicial independence, enhancing legislative oversight — through mechanisms such as parliamentary committees and select inquiries — and ensuring transparency.
Unfortunately, the legislature frequently appears subservient to the Executive; it is therefore vital that the Commission direct its mind to this imbalance.

* What about the review of electoral and representation mechanisms, which appears to have become a significant point of contention within the Alliance du Changement government? Given the technical complexity of this issue and the lack of broad consensus over time, do you think it would be better addressed by placing it within the remit of a separate, dedicated commission?

The Constitutional Review should not encompass electoral reforms. Incorporating them would make the review a mammoth task, and I am not aware if the current members possess the specialized expertise required for complex electoral matters.

Given the high stakes and technical nature of the issue, it is best that the electoral component is left to a separate, dedicated body.

* Referendums are usually held to secure direct democratic legitimacy and clarify public will on major, contentious decisions with long-term consequences. Our Constitution itself requires a referendum only for changes to the most fundamental parts of the constitutional framework. Would you expect the Commission to recommend that major reforms be subjected to the test of referendums, rather than being determined solely through political processes?

While referendums are a powerful direct democratic tool that allow citizens to weigh in on pivotal issues, they are often a double-edged sword. On one hand, they provide ultimate legitimacy; on the other, they risk causing extreme political polarization, oversimplifying complex policies into binary “yes/no” choices, and potentially undermining the principles of representative democracy.

History shows that a referendum may not always yield the intended or most stable result. For instance, the constitutional referendum held in France on April 27, 1969, regarding government decentralization and Senate reform, saw the proposals rejected by 52.4% of voters. This result directly led to the resignation of President Charles de Gaulle, illustrating how a policy vote can quickly transform into a referendum on a leader’s popularity.

Similarly, the 2016 referendum in the United Kingdom resulted in the UK leaving the European Union. While the withdrawal was heavily advocated by Eurosceptic factions, the long-term economic and social consequences demonstrate that such “once-in-a-generation” decisions can lead to deep, lasting fractures within a country.

Given these risks, the Commission must carefully weigh whether the perceived legitimacy of a referendum outweighs the potential for instability and simplified decision-making on nuanced constitutional matters.

* Should the Constitutional Review Commission consider the introduction of narrowly defined legal mechanisms enabling constituents to remove a Member of Parliament before the end of their term in exceptional circumstances, and if so, would such provisions be compatible with constitutional principles and representative democracy?

The recall mechanism allows constituents to remove an underperforming or ethically compromised Member of Parliament before their term expires, aiming to enhance accountability and narrow the gap between representatives and the electorate, though its practical implementation is fraught with complexity.

To remain compatible with constitutional principles, a recall must not be used as a tool for political vendettas, but rather as a remedy for specific, grave misconduct.

The Constitution of Kenya explicitly defines the specific grounds — such as gross violation of the Constitution or a criminal offense — under which a recall may be initiated, ensuring the process remains legally grounded.

In the UK, under the Recall of MPs Act 2015, a recall petition is only triggered by specific “exceptional circumstances,” such as a criminal conviction resulting in imprisonment, a formal suspension from the House of Commons, or providing misleading information regarding expenses. For a petition to succeed, it requires the signature of 10% of eligible voters within a strict six-week window.

If the Commission considers this, the modalities must be meticulously designed. The requirements to start a recall should be strict enough to prevent constant political chaos, yet accessible enough to hold leaders accountable.

* The powers of the Director of Public Prosecutions (DPP) were challenged by the former Commissioner of Police under the previous administration, in a dispute centred on ultimate authority over the arrest and release of suspects. This episode exposed a significant ambiguity in the current Constitution. Does this conflict constitute a compelling case for the introduction of more robust constitutional mechanisms to clarify mandates and safeguard institutional independence?

Yes, and this is important. Section 72 of the Constitution, which sets out the powers of the DPP, must be redrafted to confer exclusive authority to prosecute, decline to prosecute, or discontinue proceedings, to the exclusion of any other body or institution. Courts should still be able to review these decisions if they are challenged.

* Ultimately, institutional independence depends as much on the individual in office as on constitutional safeguards. This highlights the importance of transparent and merit-based appointments to key constitutional bodies such as the ODPP, the Commissioner of Police or theFinancial Crimes Commission, and others. What recommendations, if any, should we expect from the Constitutional Review Commission on appointment andnomination processes?

With the exception of the Judicial and Legal Service Commission, which appoints legal officers and magistrates and makes recommendations for the appointment of judges, the other institutions regrettably do not operate independently. This has been evident in the recent dismissal of workers from the Local Government, arising from the failure of the then Chairman of the Local Government Commission to adhere to the law and ethical standards.

It will be incumbent upon the Commission to devise effective mechanisms to ensure that other institutions are held accountable, including, where necessary, on pain of prosecution. Furthermore, the current system of nominations — many of which are made by the Prime Minister, by the President on the recommendation of the Prime Minister, or directly by individual ministers — must be carefully reviewed.

* Beyond incidents of aggression against the police, criminal homicides and drug trafficking have become major sources of public anxiety, despite ongoing policing efforts. The question now being raised is whether the death penalty should be reintroduced, and whether this issue ought to be examined as part of the broader constitutional or legal reform process — even if doing so may be perceived as going against the grain. What are your views on this?

The death penalty is not the answer to the degradation of law and order or to drug trafficking. The solution lies in educating children from a young age and in sustained, round-the-clock public campaigns to foster greater civic responsibility.

Unfortunately, citizens have been nurtured in a culture driven by material gain and money, which has become a key factor in the erosion of law and order.

Would capital punishment, if reintroduced, truly make criminals think twice before they strike? Numerous studies have shown this to be a fallacy. Criminal acts are often committed on the spur of the moment, within a matter of seconds, leaving little or no time for rational calculation. The critical question, therefore, is whether the Commission will be capable of effectively addressing this deep-rooted problem. In any event, it is inconceivable that the Commission would propose the reintroduction of the death penalty.

* Similarly, by choosing to retain the Best Loser System while other countries move toward purely secular representation, Mauritius may be perceived as going against the grain of modern political evolution. Should the Constitutional Review Commission examine whether this system remains appropriate for ensuring fair and inclusive representation in today’s context?

This is more appropriately an issue for an electoral reform commission, as it involves numerous considerations, some of which are highly emotive. The Mauritian electorate often votes based on perceived financial benefits or advantages, as well as along communal and caste lines. How can we ensure secular elections within this current context?

* In the context of modern political and societal evolution, should the Constitutional Review Commission make recommendations not only on traditional rights — such as the right to information, the right to privacy, and the protection of the rights of women and children — but also on emerging issues, including digital rights, data protection, etc.?

While the Constitution provides for many rights, there remain significant rights that have yet to be incorporated. The rights referred to in the question are recognised in numerous international conventions and should be expressly enshrined in our Constitution.

* It may be said that Mauritius meets the core criteria used to define a democratic state. However, from time to time, the idea of establishing a Second Chamber has been raised in certain quarters, though it has not attracted widespread enthusiasm. The key question, therefore, is whether the creation of a Second Chamber would better serve Mauritian democracy. What are your views on this issue?

Mauritius currently operates under a unicameral system through the National Assembly, but the introduction of a second chamber has periodically been debated, particularly as a means of enhancing scrutiny within a parliamentary democracy. The arguments tend to balance the potential for improving the quality of legislation against concerns about efficiency and cost.

However, fundamental questions remain unanswered. How would such a second chamber be constituted? Would its members be elected or appointed? What powers would it exercise? Experience elsewhere offers cautionary lessons: unelected members of the House of Lords, for example, have been able to obstruct the Chagos deal. We must therefore proceed carefully, as the public may well perceive a second chamber as yet another mechanism for creating jobs for the boys rather than strengthening democracy.

* Other issues occasionally raised include limiting the term of office of the Prime Minister and conferring additional powers on the (non-elected) President of the Republic. Would such reforms truly strengthen our democracy?

This is not an easy question. It is highly unlikely that any party leader, particularly a young one, would willingly serve only a limited term as Prime Minister. Moreover, imposing such a limit would place the party in the difficult position of selecting a new leader.

As for the President, an unelected officeholder should not be granted additional powers. If the President is to be vested with more authority, he must be made fully accountable to Parliament.

Mauritius Times ePaper Friday 6 February 2026