Interview: Cader Sayed-Hossen, Former Minister of Industry
* ‘The Electoral Commission should remain above the fray, maintain a neutral position and allow a process provided by law to be carried through… But this has most unfortunately not been the case’
* ‘The Supreme Court may consider the setting up of a Constitutional Division as a priority… If it does not, implying that this is not a priority, then it is frightfully disquieting’
Cader Sayed-Hossen, LP candidate at the 2019 elections withdrew earlier this month his electoral petition which sought to challenge the election of MP Gilbert Bablee in constituency no. 15 (La Caverne/Phoenix). The case, lodged in November 2019, had still not been resolved four years down the line, and was to start anew in view of the fact that the lead judge had gone into retirement, and two other Judges were appointed by the Supreme Court to hear the matter. Mr Sayed-Hossen said he did not want to be “a party to this mockery of justice”. He speaks, in this week’s interview, about his disappointment with the manner in which the case has been delayed and the hurdles that came in the way of a timely resolution of his petition due to the Electoral Commission’s numerous objections raised during the trial. He goes on to suggest the setting up of a Constitutional Division at the level of the Supreme Court with a view to expediting electoral matters which constitute one of the fundamentals of a democratic system. He also talks about the state of democracy in Mauritius, and the disquieting economic situation prevailing in the country presently.
Mauritius Times: You mentioned in a public statement shortly after taking the decision not to proceed with the electoral petition contesting the election of Gilbert Bablee in Constituency No. 15 that you did not want to be “a party to this mockery of justice”. Didn’t you see that coming since much earlier?
Cader Sayed-Hossen: It has been quite obvious for a while that all the Respondents, I mean all, not only Gilbert Bablee, were using all the means within the law to delay as much as possible the proceedings in this case. It is interesting to look at the chronology of events in this matter.
I lodged my petition on 28 November 2019, 20 days after the counting date for the 2019 general elections – the law allows 21 days. The year 2020, as from May, was literally wasted because of Covid and confinement. Things started moving again before the Supreme Court in early February 2021. By early September 2021, that is 7 months later, all ‘preliminaries’ (Demand of Particulars, pleas and amended pleas of Respondents, replies and amended replies to pleas by myself) had been completed. If it had not been for the numerous hurdles that the Respondents brought up from early September onwards, this matter would have been resolved much earlier – in one direction or another.
Then started that long period during which the Respondents presented motion after motion to the Court, all of which were rejected in 5 interlocutory judgments by the Court. On 29 March 2022 I moved to call 2 Respondents (the Electoral Commissioner and the Returning Officer of Constituency No. 15) for personal answers – for them to be interrogated by my lawyer, Senior Counsel Gavin Glover, in open court. This motion of mine was allowed by the Court on the same day. This is precisely when the circus started.
As from then Respondents presented motion after motion to avoid appearing for personal answers – including a motion on 8 February 2023 for special leave to appeal to the Judicial Committee of the Privy Council regarding an interlocutory judgement delivered on 11 January 2023 to the effect that my petition be heard on Merits and that the Electoral Commissioner and the Returning Officer of Constituency No. 15 be heard on personal answers – which motion was also disallowed on 4 July 2023 and the petition Merits was fixed for 3, 4 and 5 October 2023 upon a letter dated 12 July 2023 sent by my attorney, Senior Attorney Raju Sewraj.
By then, it had been 4 years minus 56 days since I had lodged my election petition. And in the meantime, the lead Judge in the case had retired and two other Judges were appointed by the Supreme Court to hear the matter.
Then came the acid icing on that messy thing: the decision of the Court, following the request of the Respondents and following a circular from the Office of the Chief Justice, that the whole petition be heard anew – starting from zero all over again. After nearly 4 years of squabble and delaying tactics that I call dishonourable, nothing had happened, the hearing had not even started.
I did not believe, not even for a nanosecond, that if 4 years of proceedings had led to that – the decision to start all over again – another 1 year or so which is left before the next elections would result in anything at all. This is when I notified my legal team that I would not proceed with my petition, adding that I was not willing to be a party to a process which I consider to be a mockery of justice.
Had I seen that coming much earlier? Actually, no. We had all reconciled ourselves with the delaying tactics and the multiple hurdles, but we were not expecting that one year or so before the next general elections the Court would decide that the process had to start anew. At least I did not.
As from mid-2022 I had realised that the Electoral Commissioner would do his utmost to avoid being called for personal answers and would therefore try to have the process dragged on. My legal team and myself were ready and willing to confront that sort of delaying tactics (to which we had by then got used), but we were certainly not expecting that denouement.
* It would seem that it’s the Electoral Commission which through its numerous objections raised during the trial would have probably delayed the resolution of this case. What do you make out of its position in this, and other electoral petitions lodged by unreturned candidates since 2019?
It must be pointed out ever since 29 March 2022, when the Court allowed a motion presented on that same day by my legal counsel that the Electoral Commissioner and the Returning Officers be called on personal answers, the Electoral Commissioner seemed to be the only Respondent in the matter. I was baffled by the swarms of counsels and attorneys from the Attorney General’s Office, counsels for the Electoral Commission, present in Court at each sitting.
Indeed, the Electoral Commissioner raised numerous objections, presented several motions, including one to ask for special leave to appeal to the Judicial Committee of the Privy Council regarding the Court interlocutory judgement that he be called, together with the Returning Officer, on their personal answers. Note that all said motions were disallowed by the Court.
Let us put all this in context.
Among its stated aims and objectives, the Electoral Commission is to ‘provide a level playing field to all stakeholders so that elections are seen to be free and fair’. I contend that the results of general elections in Constituency No. 15 were not free and fair, and I sought remedy from the Court, as prescribed by section 45 of the Representation of the People Act 1958 [as amended].
Thence I lodged an electoral petition in which I stated, among others ‘that to ensure that the will of the electorate has not been frustrated as a result of the irregularities, shortcomings, mistake or miscount as particularised in the present electoral petition that a partial recount of the ballot papers be ordered in respect of the Petitioner [myself] and the Respondent No. 1 [Gilbert Bablee] at the General Elections of Constituency No. 15 held on 7th of November 2019…’
That was a very simple request.
As the office of the Electoral Commissioner is the institution which organises, runs and manages elections and as, in my petition, I mentioned ‘irregularities, shortcomings, mistake or miscount’ basic logic tells you that if there is no irregularities, shortcomings, mistakes or miscount, nothing untoward, then there is nothing to hide, so you just open your books and be transparent so that said elections be seen by one and all to have been free and fair.
I contend that, as the institution organising, running, and managing elections, the Electoral Commission should remain above the fray, maintain a neutral position and allow a process provided by law to be carried through, and even cooperate to ensure that it be carried through in a timely manner – thereby causing that elections be indeed seen as free and fair. But this has most unfortunately not been the case.
So, why that single-minded and steadfast obstinacy of the Electoral Commissioner to resist being called for personal answers, knowing full well that his each and every move would delay the matter further?
* Beyond the issue of speedy justice especially with regard to electoral petitions, the fact of the matter is that most if not all electoral petitions lodged since 2019 have been dismissed for failure by petitioners to bring “cogent evidence and material facts to prove on a balance of probabilities that there have been mistakes committed” in the conduct of those elections. What do the judgements tell you about the attitude or approach of our Supreme Court towards electoral petitions?
It is not totally accurate to say that most if not all of these petitions have been dismissed. Actually, quite a few were withdrawn because the Respondents obtained from the Court that important, salient and relevant paragraphs from these petitions be deleted, thereby considerably weakening the argumentation contained therein.
I have had the opportunity to read a few of the electoral petitions lodged in the wake of the 2019 general elections. Some of these petitions contained allegations that seemed substantiated to me: of course, I am not a Judge of the Supreme Court, and it is the responsibility of the Judges to carefully and fairly consider and adjudicate.
The ‘administration of justice’, often equated with the ‘application of the law’ can be a tricky thing. I personally believe that the end objective of the administration of justice should simply be that Right be done. Can we really argue that, in most of the cases we are referring to, Right has been done?
There are a few normative issues of high general national importance which any authority in a democratic State has to particularly uphold in order to ensure that the type of society in which we have, by consensus, decided as a Nation to live in be maintained and upgraded. These include the safeguarding and strengthening of the rule of law, of the promotion and of the institutionalisation of rule-based decisions, of democracy as an ethos and of democratic institutions as an incarnation of that ethos, of civil liberties, of caring for the under-priviledged among us and of efficiently running the public affairs of society, its economy, its health system and its educational system, among others.
And whether we realise it or not, the safeguarding and strengthening of democracy as an ethos and of democratic institutions as an incarnation of that ethos is probably the most important of all those issues – because it is from the proper functioning of the democratic system that everything else flows – and ensuring that elections are free and fair and perceived as such is a very high priority on the list and has to be looked into with utter seriousness.
I will not comment on the attitude or approach of our Supreme Court towards electoral petitions, but I will insist on the fact that the time factor is an essential one to take into consideration.
* Very precisely. One would have expected that the electoral petitions lodged within the time limit, that is 21 days after the proclamation of elections results, would have been fast-tracked despite delaying tactics, if any. Isn’t that an instance of the checks and balances in our system not operating as they should?
It is not only an instance of the checks and balances in our system not operating as they should, it is a dismal failure of one of the fundamentals of the democracy that we claim to be.
Free and fair elections, and perceived as such by all stakeholders, constitute the most important foundation of a democracy and whenever the freeness and fairness of elections are doubted, this matter should receive the highest and most immediate attention by the judicial authorities.
Without trying at all to minimise the importance of any other case that a citizen of this country brings to Court to be decided upon by a Magistrate or a Judge, I think that there should exist a sense of priorities in the administration of justice and that an electoral matter should be expedited within a short period. Otherwise, even so-called democratic practices become a joke because failing to expedite a case, any case, linked to elections shows non-concern for one of the fundamentals of a democratic system.
However, notwithstanding all the above, the question of time availability for the Court remains one of fundamental relevance and it is an issue related to the organisational structure of our judicial system. There does not exist a Constitutional Court or an Electoral Court in Mauritius, although the term ‘Electoral Court’ is sometimes used, for the sake of convenience I suppose. The very same Judges who are appointed to hear a matter having to do with elections or alleged breaches of the Constitution also hear a number of other criminal or civil cases which are in totally different domains and have to rummage through their schedule to find a slot for a matter which should normally be treated as a matter of priority.
We probably do not really need an Electoral or a Constitutional Court as such. The Supreme Court has had a Commercial Division for quite a while and, more recently, set up a Family Division and a Land Division. There could well be set up a Constitutional Division of the Supreme Court dedicated exclusively to hear cases relating to electoral and constitutional disputes.
We all, in our day-to-day life, address what we consider to be priorities first. The Supreme Court may consider the setting up of a Constitutional Division as a priority and act accordingly. I am convinced that would substantially speed up the whole process. If it does not, implying that this is not a priority, then it is frightfully disquieting.
* Would you say that equating the repeated failures of electoral petitioners to make their cases before the Supreme Court for whatever reasons with the “semblance of democracy” that is said to prevail here as contended by Opposition parties here, in and outside Parliament, would be absurd?
No, I do not think it would be at all absurd to link the two features.
Democracy is a whole and cannot be considered piecemeal. Democracy is not simply a state of things, but also a feeling.
If, for example, there exists a sentiment of ‘fear’ among the population, fear of arbitrary and unchecked treatment by the Police including its CCID, its SST and its notorious ‘provisional’ charge where any citizen may be provisionally charged by virtue of a ‘reasonable suspicion’ against him or her, fear of arbitrary treatment by dictatorial institutions, fear of speaking out when speaking out should be the norm, fear of being caught on the ‘wrong’ side of the political line, then it shows that something is rotten in our society.
As for the functioning, rather the dysfunctioning of Parliament, the holy of holies of our democratic heritage, it is simply ‘une innommable honte’.
* There are some well-grounded concerns and objections to the manner in which the law-and-order situation has been handled in recent years, the never-ending investigations of the ICAC, and not the least is what is perceived as the tyranny the Opposition is subjected to in Parliament that has made the Assembly almost dysfunctional. All these do not speak well for the state of democracy here. What’s your assessment of the state of our democracy?
As for my assessment of the state of our democracy, I certainly do not see it as a shining star.
I think that under our genteel cover we are, as a people, not only resilient in the face of adversities, but also quite argumentative and we do not really like to be bullied around. And our interpretation of our democracy includes our attachment to some sense of freedom, the freedom not to be harassed without cause and the sense of freedom that you feel when you perceive the authorities as the guardians and guarantors of that freedom.
Recent studies and surveys carried out here have shown that the population feels less and less free in spite of the existence of would-be democratic institutions. If you combine a sense of fear, however undefinable it may be, and a sense of your freedom narrowing down, then you have a problem.
Parliament has been converted into a boxing ring where the only one allowed to hit is an unelected Speaker who uses his considerable weight to kick elected members of the Opposition around and out of Parliament. Municipal elections have been postponed sine die.
When two of the most important pillars of our democratic system – Parliament and local democratic representation – are paralysed we cannot even talk of a ‘semblance of democracy’. It is simply a wilful and systematic perversion of our most sacred institutions, a hijacking of the State by the present government.
* Do you think the common people care about the state of our democracy, about whether the Police, ICAC, or the FIU are doing what they are mandated for, or are they more concerned about the cost of living, and what recently has made the headlines: petrol prices, for instance?
I would say that the two are not mutually exclusive. It is true that we are no longer in the 1960s or the 1970s when the memories of the struggles by the Labour Party for democracy, for voting rights, for workers’ rights, for independence and for nation-building and, later, those of the MMM for more workers’ rights and for the broadening of the democratic space were still alive and vivid in our national imagination.
Generations have passed and concerns change with it. But democracy and the freedom that goes with it have become a constant in the life of our fellow citizens and I will not say that they do not care about it. But it is nonetheless true that they are, as a matter of priority, very much concerned about the rapidly rising cost of living.
Petrol prices? The Government’s and STC’s management of this dossier is an absolute scandal. Let us just have a look at the details around the price increase of Mogas and Diesel on 1 October 2023.
On 1 October 2023, the selling price of Mogas per litre was increased from Rs 69.00 to Rs 72.10n (+4.5%) and that of Diesel from Rs 54.55 to Rs 60.00 (+10%).
The main factors leading to this increase were the increase in the price of crude (ref Brent barrel) from USD 74.84 on 1 June 2023 to USD 92.09 on 29 September 2023 [+ 23%], the USD-Rupee exchange rate and very heavy Government Taxes. The MUR has depreciated by more than 40% since January 2015. This is a direct consequence of an ineffective and amateurish economic policy resulting in a dramatic decrease of our exports relative to our import needs and our actual imports.
Furthermore, Mogas and Diesel are hit by very heavy Excise Duties: Rs 12.20 per litre for Mogas and Rs 4.70 per litre for Diesel as well as by 15% VAT. VAT amounts to Rs 9.40 per litre for Mogas and to Rs 7.83 per litre for Diesel. Total Government Tax represents on Mogas Rs 20.02 per litre (27.8% of retail price) and on Diesel, Rs 12.53 per litre (21% of retail price).
It is clear that, given the dire economic situation of consumers, we can argue for the reduction or elimination of Excise Duties on Mogas and Diesel as an interim measure to combat the rising cost of living and to slow down the systematic “appauvrissement” of the population. Furthermore, I share the views of Navin Ramgoolam that Mogas and Diesel should be considered as basic needs and hence should not be VATable.
The utter lack of transparency in the STC Price Structure should be strongly highlighted. Prior to this government terminating the supply agreement we had with Mangalore Refineries, we used to purchase 7 different types of fuel from that Government of India entity.
With Mangalore (MRPL), we were guaranteed the best prices on the market and, most importantly, transparency prevailed: Brent value was known (published figures) and the Premium (the compounded figures of all supplementary costs leading to final price) used to be negotiated between STC and MRPL twice a year.
Furthermore, the contract with Betamax gave us stable, pre-negotiated and predictable transport costs. We were thus guaranteed to have the best sourcing prices (crude price being beyond our control) and the best transport costs under reliable conditions.
At present, the STC Price Structure lumps together under the heading “Reference Price” all costs (FOB, Transport, Insurance, etc.) thus hiding probably high costs of sourcing because they buy from traders and “middlemen”, as well as high costs of transport.
In the Price Structure published by the STC on 1 October 2023, we find that the Premium paid by the STC for Mogas is USD 38 per barrel, that is 41% of the cost of a barrel of Brent on that day. This is a very high cost to pay and the only plausible explanation, excluding any other sombre causes, is the amateurism and the utter inefficiency of the STC’s purchasing strategy.
And then a week later, on 7 October 2023, fuel prices changed again.
The price of Mogas is brought down from Rs 72.10 to its previous level of Rs 69.00 per litre, whilst the price of Diesel is increased again from Rs 60.00 to Rs 63.95. This has been presented as a positive measure to benefit car owners – you hardly have diesel-powered cars on our roads anymore.
But the devil is in the details: this operation was done at no cost to the STC and indeed resulted in an increase in its revenue.
The current consumption of Mogas in 2023 is estimated to be 298 million litres and that of Diesel to be 270 million litres. So, by ‘reducing’ the retail price of Mogas by Rs 3.10, the STC forfeits a revenue of Rs 925 million for 2023 on average. And by increasing the price of Diesel, the STC increased its revenue by Rs 1,067 million.
Actually, the 7 October 2023 price changes resulted in a net increase of Rs 142 million for the STC. So, it was no favour done to consumers.
* What’s more disquieting about the situation prevailing in the country presently? Is it politics and its habitual villains, or is it about the mis/management of the economy?
Politics constitute a constant and unavoidable component of our national cultural concerns. But, definitely the most disquieting aspect of the country is the utter mismanagement of the economy since 2015, of which the soaring cost of living is only the palpable end. Imputing the cause of inflation to external factors only, as goes the narrative from the Minister of Finance, (Ukraine war, supply chain disruptions, hike in fuel prices, Covid-19, etc.) would be an oversimplification of the real picture.
Actually, the economic situation is grim due to mismanagement and irresponsible decisions. The external value of the local currency plays a determinant role on the local price level in a small open economy like Mauritius, heavily dependent on imports. The Rupee exchange rate is a mirror of the underlying economic fundamentals, including fiscal and monetary policies as well as the political determination to support the value of the currency.
A comparison between the periods 2005-2014 and thereafter highlights the sharp drift in the external value of MUR vis-à-vis USD.
In 2014, when the Labour Party left government, the USD was worth Rs 30.62, against Rs 29.50 in 2005 when the LP was voted into office. The USD was worth Rs 44.18 in 2022. So, while the external value of the Rupee was stable over the 10-year period 2005-2014 (with a slight depreciation of 3.8% over 10 years), the picture has drastically changed with a substantial depreciation of 44.3% from 2015 to 2022.
To better gauge the adverse impact of inflation and value of the Rupee on the standard of living of the population, it is worth noting that in real terms our current average living standard is roughly the same as in 2014 when measured in USD, which is a relevant standard being given that most of our consumption is imported and paid in USD, and our GDP per capita in USD has shrunk from USD 10,366 in 2014 to USD 10,216 in 2022.
Moreover, due to the depreciation of the Rupee, it would take Mauritius several years to migrate from Middle to High Income country as per the computation of the World Bank. In 2022 the Gross National Income [GNI] per Capita was USD 10,760, nearly 30% behind the benchmark of USD 13,845.
The real causes for the weak Rupee lie in the structural weaknesses of the local economy which still remain unaddressed:
- Bad governance and institutional failures hindering economic growth capacity and lowering the attractiveness of Mauritius as an investment and business destination.
- Unbalanced GDP structure with growth propelled primarily by consumption.
- Low level of private investment (16% of GDP in 2022, and mostly aimed at real estate development).
- Foreign Direct Investment being still mainly confined to the real estate sector (which attracted around 55% of FDI in 2022).
- Deindustrialization – the share of the manufacturing sector in GDP stood at 13% in 2022 against 19% in 2014.
- Lack of new growth poles.
- Low or stalling organic growth of existing sectors (except tourism and global business).
- Downturn in the Export Oriented Sector with net exports dropping from MUR 20 billion in 2014 to MUR 16 billion in 2022.
- Insufficient diversification of our export markets.
- Huge balance of trade and current account deficits of MUR 190 billion (33% of GDP) and MUR 65 billion (11% of GDP) respectively in 2022.
- Public debt which has exceeded 80% of GDP, standing at MUR 514 billion at the end of first semester 2023 (excluding adjustments made by the Ministry of Finance to which the IMF does not subscribe).
- Underutilisation of human capital (according to CSO there was a significant underutilization of the labour force to the tune of 113,600 in 2022).
In addition to the above factors, the lack of independence of the Bank of Mauritius in the conduct of the monetary policy has exacerbated the downward pressure on the Rupee. Over the last years the Central Bank had made an ‘impasse’ over the necessity to protect the value of the Rupee. The lack of confidence in the monetary policy is clearly reflected in the reluctance of local operators involved in the export sector to convert their foreign currencies into Rupee.
In spite of the revival of the tourist industry with gross earnings of Rs 65 billion in 2022 there is still a supply shortage of foreign currencies on the local market. It is also important to put a halt to the ‘print and spend’ policy of the government. Since 2020 Rs 158 billion of new money has been printed (including Rs 80 billion made available to the MIC without the scrutiny of Parliament).
* And where will all that lead us to according to you?
To days of trouble, certainly. But we do not have the right to allow hope to fade away and we also need to realise that hope without determination and hard work is a worthless futility.
The structural weaknesses in our economy which I have listed a few minutes ago just cannot all be corrected in the short term and most of them will require sustained action over a certain number of years. Rebuilding an industrial base, for example, requires a business-friendly environment, institutions that inspire trust, investment, infrastructure, a trained workforce, probably a regulatory framework to meet international standards, markets, adequate logistics and trained management.
You cannot build that up overnight, just like you cannot correct all the weaknesses I have mentioned in the short term. But it has to be done and it can be done with the right type of political determination and the proper operation of required institutions.
It has taken the present government nine years to operate a deep capture of the State and of its main institutions and the negative results of this onslaught are now glaring. No economy can develop and flourish without a conducive environment, which is now non-existent. The challenge of the next government will be to sanitise our institutions so that the said conducive environment may emerge.
Mauritius Times ePaper Friday 13 October 2023
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