6 April 2018

Mauritius: "The jury is still out on the broader issue of the exercise of presidential powers."

interview

This week, we speak to constitutional expert Milan Meetarbhan for a post mortem on the resignation of the president and the can of worms that seems to have unleashed.

He speaks on whether or not the former president, Ameenah Gurib-Fakim, violated the constitution before she left office. What options does she now have to get her story heard? Why has the government referred the question of Alvaro Sobrinho to the ICAC and what of the opposition's role, real or alleged in all this. Meetarbhan airs his views on these and other matters and hints at how we may actually be at the end of the beginning.

Let's first try by putting to rest the aborted commission of inquiry set up by Ameenah Gurib-Fakim. Since there are 1.3 million constitutional lawyers in this country, there are those who believe that Fakim was right in setting it up and those who believe the commission was illegal. Which of these camps do you belong to?

I am one of those who believe that the jury is still out on the broader issue of the exercise of presidential powers. Only the Supreme Court can authoritatively declare what the law is. It's certainly not for the Prime Minister's Office (PMO) then engaged in a bitter war of attrition against the president to give an authoritative view of what is permissible or not under Constitution. At a time when the PMO is accusing the president of seeking to usurp the powers of the political Executive, it gave the impression that it was itself usurping the powers of the judiciary in decreeing that an action was illegal and threatening those who 'conspired' to perform an 'illegal' act or would have dared to be part of it.

Are you saying the Commission of Inquiry on the Commission of Inquiry will not lead anywhere?

Let us keep our cool and not lose our sense of reality because of what the spin-doctors are telling us. The attempt by the former president to set up a Commission of Inquiry happened over the last 24 hours of a saga which lasted for weeks. At least two weeks before the president sought to appoint a Commission of Inquiry, Cabinet had already decided that legal procedures should be initiated to remove her. Subsequently, we were told that the political Executive had evidence of very serious misconduct that had not been disclosed yet. Now, everyone is talking only about what happened in the 24 hours before the president announced her resignation and not about what took place in the weeks preceding this announcement. Let's get our sense of proportion here and look at how the whole saga unfurled and the acts and doings of everyone involved throughout the weeks and even months preceding the resignation. Did not senior members of this government vehemently defend the president when the so-called Sobrino scandal first came to light a year earlier? Did not the minister mentor state, only a few days before Cabinet decided that legal procedures should be initiated for removal of the president, that the matter had been settled as the president had re-reimbursed the funds ? Why are we all focusing on the last 24 hours as if nothing had happened before? It's mind boggling!

But isn't the president's setting up the Commission of Inquiry a serious matter as the pundits have been mostly saying is that the president has no power to act without the consent of Cabinet or a minister mandated by Cabinet?

That is what the pundits might have been saying over the last week. Gurib-Fakim is being accused of having conspired with others to usurp power. A president is the commander in chief in whom executive authority is vested by the Constitution, has a constitutional duty to protect and uphold the Constitution, is the highest paid public official in the country and enjoys lifelong tax exempt benefits but, according to the army of experts lined up in the media over the last week, he is paid to act only at the bidding of the political Executive and no more.

If the illegality of the Commission of Inquiry set up by the former president of the republic has not been established, could the commission of inquiry on this commission of inquiry announced by the prime minister, Pravind Jugnauth, be illegal?

Under the Constitution, an alleged violation of the Constitution by a president should be investigated by a tribunal consisting of sitting or retired judges. These judges should, under Section 30 of the Constitution, be appointed by the Chief Justice. Pravind Jugnauth failed to appoint such a Tribunal and, instead, waited until the president was gone to appoint a commission of inquiry of his choosing to decide whether there was a violation of the Constitution. Whereas members of the Tribunal would have been appointed by the Chief Justice of the Supreme Court of Mauritius, members of the commission of inquiry will be appointed by the leader of the MSM. This commission will only look at what happened during the 24 hours preceding the resignation announcement. What about all the allegations that had been made in the preceding weeks? What about the grounds on which Cabinet had decided two weeks earlier that a Tribunal should be appointed?

Isn't it late now to appoint a tribunal since Fakim has resigned?

Pravind Jugnauth had time to do it while she was still in office. But, since he was not prepared to go for a tribunal for reasons of his own, the matter of the legality or otherwise of the president's purported exercise of her powers may still be referred to the Supreme Court.

Why do you think he didn't? It would have made more sense, wouldn't it?

It would have if the intention was clearly and genuinely to obtain legal certainty. If the objective is political and has nothing to do with clearing the legal situation, then other means might be more appropriate. Some people seem determined to make sure that the controversy drags on so that they can derive maximum political capital out of the ramifications of the crisis by ensuring by hook or by crook that some opposition figures are somehow shown to have conspired to commit an unlawful act. One lawyer friend of mine told me that a show put up by these people this week could be described as "live conspiracy on a tv reality show". They must be really desperate.

What is likely to come out of this commission? Is the president forced to go and face the assessors or can she use the immunity card?

We do not know yet what the official terms of reference are and who will be the members of the commission. Once these have been published, we will have a better view of what could be the ultimate objective. For the moment, it looks like a PR and political manoeuvre which could be a futile exercise from the nation's perspective but which could be very useful for desperate politicians seeking to embarrass their opponents. I do not know what the former president's legal strategy will be. But I believe that she may still hold the trump card as to how future events unfold. If she wants to use the card.

Suppose the aim of Pravind Jugnauth's commission is to show that some members of the opposition 'advised' Fakim to set up a commission to destabilise the government, what do they stand to lose? She is still an adult and was occupying the highest office in the country, wasn't she?

What this would mean is that the Lepep government's appointee as president not only misbehaved to the extent that she had to be disowned by the very Lepep leaders who were ever so ready earlier to spring to her defence and that of her Angolan friend, but that their nominee as president was acting in accordance with advice from the opposition to destabilise her own government. If this were the case, then those who told the nation that she could be entrusted with the functions and powers of a head of state and who strongly defended her over several months should be held accountable. They must be held responsible for their serious blunder, which has cost the nation dearly.

Since no tribunal has been set up and no affidavit was sworn by Fakim before she left the State House, what forum does she have to fulfill the promise she made that she would clear her name?

For any citizen to want to clear her name is a matter for that individual. She will have to choose the forum, maybe with legal advice. This is a not a national issue until and unless, in trying to clear her name, that individual reveals sensitive information involving the State or people at the helm. People are looking at the bigger picture. They want the truth about the real connections of Sobrino in the country and whether pressure was indeed brought to bear on national agencies to deliver licences and permits. If so by whom and why? These are the real questions. The former president is now history. Unless she makes herself relevant by helping to shed light on a major scandal that is getting and will get more coverage in the international media.

She hasn't so far and there was a lot of hope that the opposition would push for a setting up a Commission of Inquiry. Is anything good likely to come out of a disunited opposition?

Various components of the opposition may have their own respective agendas. What the opposition and public opinion may do in a parliamentary system like ours is to keep the pressure on government to appoint a full-fledged independent inquiry.

Isn't the ICAC a good option?

The facts of this case are beyond the jurisdiction of the ICAC, though there may also have been offences which the ICAC could investigate and prosecute.

Aren't we dealing with corruption and gratification? Pravind Jugnauth says he is in the presence of a letter denouncing that and that he handed it to the ICAC? Wouldn't that shed light on the Sobrinho ramifications and also prosecute those involved?

There may indeed be offences within the remit of the ICAC. But there are other matters which also need to be investigated. The circumstances in which an Investment Banking licence was reportedly declined by the central bank and the reasons why the law was subsequently amended by the minister of finance to transfer the power for issuing such licences to the Financial Services Commission (FSC). The reasons why the FSC licence was suspended and subsequently restored and the circumstances in which the minister of finance appointed a member of the board at the last minute to ensure that the licence would be restored. The circumstances in which the Board of Investment (BOI) initially declined to issue permits and was subsequently led to issue these permits. These are some of the other questions which have also been raised. People are convinced that they have not been told the truth, the whole truth yet. The former president herself can help to get the truth out.

The way the opposition has dealt with the crisis is rather confusing: First Shakeel Mohamed tables a motion. Then Labour Party Leader Navin Ramgoolam criticises the the-president before the whole party rallies to her rescue. Wasn't that an awkward political move?

I am not aware that the Labour Party rallied to the rescue of the president. What the Labour Party did just before the president resigned was to shift the focus to the bigger picture, the Sobrino affair, instead of joining the bandwagon and focus on the decision of a president who was on the way out and would become history within days. The so-called Sobrino scandal may have long-lasting repercussions on the image of the country, on the rating of its institutions, on the soundness of our financial services sector and on the integrity of governance. This is where the focus needs to be.

Is this the first time the Presidency has suffered such infamy?

One former president conducted negotiations on political alliances with more than one partner at the Reduit. Before leaving, he held a highly political press conference in the State House. That same president also ignored the advice of the prime minister and acted on his own. Does that ring a bell? The irony of the present situation is that the appointment of a president who did not officially come from the ranks of political parties was hailed as a step in the right direction as it was felt that the president would be above petty politics and above controversy. The country's first president from civil society turned out to be very naïve at best and very clumsy on other occasions. She had to leave in total disgrace.

A petition is being signed by hundreds of people asking for a Commission of Inquiry on the whole Sobrinho affair. Are we likely to ever have the answers to our worrying questions?

I believe that the truth will be established at some point. It will happen under a future government or it may happen even sooner as the international media or foreign authorities investigating the matter reveal the facts.

Whether the truth comes out or not, the handsome package Gurib-Fakim is walking away with for life has brought to the forefront the debate about the President's Emolument and Pension Act. Do you think amendments to that act are in order?

A review of the Act has been in order for the last couple of years when it was alleged that the law was being openly flouted by a former president who was being paid a salary by the State that is also paying him a lifetime pension. This allegation and flagrant breach of the law have not been denied as far as I know. Questions have been asked about whether a former president being paid a full pension is also being paid a salary, allowance or whatever the remuneration is called, as a minister in spite of the clear provisions of the law that a retiring president in receipt of a pension shall not undertake any remunerative employment for the remainder of his life. Within a couple of hours of President Fakim leaving Le Réduit, it was announced that a Commission of Inquiry would be appointed to see if she had acted in breach of the law, but two years after serious questions were raised about a possible breach of the law by another former president, nothing has been done yet. Since some people in power see conspiracy everywhere, they have to ask if others have been conspiring to make an unlawful payment for the past three years.

Barring that, do you think the president's golden pension should be reviewed?

This reminds me of the parable about the blind men and the elephant. When it comes to the presidency, we cannot talk about the sensational bits and pieces. We have to look at the place of the institution in our constitutional regime and what do we need a president for.

Do you see in the positioning of the various parties regarding the Sobrinho affair a move towards forming alliances for the next general election?

Our electoral system and the realities on the ground are such that electoral alliances are often required to ensure national unity and stability. However, the morality and decency of dalliances as partners hop from one bed to another with few scruples and little respect for the electorate have done a lot of harm to Mauritian politics. A party in opposition which is positioning itself as a future partner of a party in power fails to perform its constitutional duties and lets down its electorate. When an MP elected on a platform opposed to the party which eventually wins the election crosses the floor to join the party, s/he opposed at the election, s/he betrays the trust of those who elected him/her and s/he does not have a legitimate mandate from the people anymore. Yet, the present government has a parliamentary majority thanks in part to those who do not have a legitimate mandate anymore.

How can alliances be formed if one party does not join another?

We do not only have pre-electoral or post-electoral but sometimes also prospective hypothetical alliances that guide the actions of various political parties. Suitors line up before an existing marriage is dissolved so that they can step in when the time is ripe. Sometimes, they are prepared to step in anyway and are content with a ménage à trois even if the existing marriage is not dissolved.

Coming back to the Presidency/PMO tug of war, what do you think will come out of this situation? What are the possible scenarios?

One possible scenario is that everything dies down in a few weeks' time and we stack yet one more scandal in the dark corners of our mental junk drawers. Another scenario is that those who want to shift the blame for the failings of their own government and head of State to the opposition cling to their conspiracy theories and keep these alive for as long as possible. When journalists exposed a previous Attorney general, the journalists themselves quickly became the story. When the commander in chief appointed by the government allegedly fails in her duty, the opposition becomes the story. Do you see the pattern?

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