4 September 2017

Mauritius: Milan Meetarbhan - "It is time that we have a Constitutional Bench at the Supreme Court"

Milan Meetarbhan, former ambassador to the United Nations, recently released his book "Constitutional Law of Mauritius: Constitution of Mauritius with Commentaries".

The official launch was carried out exactly 50 years after Sir Seewoosagur Ramgoolam tabled a motion in Parliament, on 22 August 1967, to ask the British government to grant Mauritius its independence. Meetarbhan wonders whether it is not finally time to review our Constitution.

Let's start from the top. What was your inspiration for this book?

I've always had an interest in public law and I was acutely aware of the fact that there was not muchwritten on the Mauritian Constitution. The inspiration for the format of the book came from Basu, who is a leading authority on the Indian Constitution. I read his book a long time back and I always knew that if I had an opportunity to write on the Mauritian Constitution, I would do it using the Basu model.

Why write this book now?

I never had the time to do it but I have finally been able to devote a lot of time to working on this. Why now? Because of the 50th anniversary of Independence and therefore, the 50th anniversary of our Constitution. I think that now, we've had a long experience of constitutional practice, constitutional case law and also because I believe that after 50 years, the time is right for us to start thinking about how we should revisit the Constitution.

The Constitution was not an act of the Mauritian Parliament. Is that not reason enough to start over and make that right?

It was adopted as an act of the British Parliament, but there were prior consultations with Mauritian political parties. However, the Constitution gave the power to the Mauritian Parliament to amend the Constitution at any time. One of the questions we have to ask ourselves now, if we decide to have a look at the Constitution again, is whether we should maintain the provisions of the Constitution regarding amendment.

One of the main issues we have with the Constitution is that it is relatively easy to amend. You can have the required majority in Parliament without even having 50 % of the popular vote. Does that not make amending the Constitution a far too simplistic process?

I think this is in fact a major issue. When we talk about revisiting the Constitution, we have to look at both substance and form. At the end of the day, if you are going to amend the Constitution through a parliamentary majority, the executive will have its way with the Constitution. This is certainly not in line with the spirit of a democratic Constitution. We've seen, on many occasions, that the Constitution has been amended at very short notice, often with practically no public consultation. When it was amended to abolish the Economic Crime Office, that was done with about 24 hours notice. You cannot do that. Whatever be the merits of the amendments, the issue is whether a Constitution can be amended in these circumstances, without prior consultations.

Speaking of constitutional amendments, how close were we to seeing our democratic safeguards, such as the separation of powers, fail with the proposed Prosecution Commission?

Let me say that one of the things that has worked with our present constitutional regime is the principle of separation of powers and it has worked because of our judiciary. The judiciary has, over the years, taken a very strong stand on the principle of separation of powers. With respect to the Prosecution Commission in particular, it was not so much about separation of powers as it was about changing a fundamental provision of the Constitution, with no consultation at all. We've come a long way on the issue of independence of the Director of Public Prosecutions (DPP). That amendment, if adopted, would mean turning the clock back and would have entailed serious ramifications. We have to move ahead not go backwards.

You suggest in your book that the DPP is part of the executive. Some people still think that the DPP is part of the judicial system. Can you shed some light on that?

I think very often there is some confusion on this. There was a Privy Council case where it was said that the DPP was part of the executive. When the Privy Council said that, it was in relation to a particular issue. Though our judges had said from time to time that there should be some kind of review, the general rule was that decisions of the DPP were not subject to judicial review. So, it is in this context that the Privy Council pointed out that he is part of the executive and, as such, his decisions are amenable to review.

Do you think that one of the main issues with our Constitution is that we don't understand it and just let things slide?

I think there are two issues. One is a lack of understanding. We also have very restrictive rules in Mauritius on locus standi, that is, who can actually go to court. The Constitution provides, in general terms, that you must be an aggrieved person and there must have been a breach of the Constitution in relation to you. We've had some cases where people have tried to ask for constitutional redress as a taxpayer or as an elector but courts have not always been very happy with this.

How can we change that?

Two ways. One is if there is a more progressive interpretation of the rules by the judiciary. Otherwise, the best thing would be to change the rules. If we have a general review of the Constitution, then we should also look at this particular issue. I also believe it is time that we have a Constitutional Bench at the Supreme Court and we may later decide if we need a Constitutional Court.

Let's talk about electoral boundaries. Do you think that we will ever have constituencies with a similar number of voters?

If you are commenting on a Constitution, you cannot overlook the fact that there is a clear provision of that Constitution that we might not comply with. My concern, looking at it from an academic perspective, is whether what we have and what we've had for 50 years is consistent with the clear provisions of the Constitution or not. Is the Electoral Boundaries Commission satisfied that the present boundaries are consistent with the provisions of the Constitution? I think this is a legitimate question that we should ask ourselves.

Another major constitutional controversy recently was the Second Republic. Regardless of its flaws, how significant is the idea of devolution of powers?

I believe that in any democracy, you must avoid concentration of powers. If you have different institutions exercising different powers, it works best in a democracy. I don't necessarily have a problem with the president being given more powers. However, if more powers are given to the president but the president does not have greater legitimacy, then this will be problematic. As it is, the president already has significant powers and there are already questions about whether her mode of election gives her the legitimacy to exercise these powers. I am all in favour of the devolution of powers, but then we must also look at the mode of appointment of the various people who will hold these powers.

Would devolution of powers not slow our lawmaking process and clog the system?

It's good that we are aware of the risks before we rewrite this part of the Constitution and address the issues upfront. If you have a president who has a mandate from the people and who is not necessarily elected on a party ticket, this is going to give a boost to our democracy, provided there is a proper delineation of the respective powers of the president and of Cabinet in the Constitution.

Speaking of the people in power, how would we would go about having limited prime ministerial mandates when, technically, we only get to vote for Members of Parliament (MP)?

Term limits are usually found in Constitutions which provide for a presidential system. In a parliamentary system, it is much more difficult because people do not elect the Prime minister as such. They elect an MP and you are not going to stop someone from standing as a candidate in a constituency because they have served two terms. If the elected MP is the one who commands the majority in Parliament, will the president be debarred from calling on him to form the government? The number of terms one can serve is not necessarily a matter for the Constitution. This can be a matter for political parties themselves to decide. But how do you do it constitutionally in a parliamentary system? This has got challenges of its own.

Let's say that tomorrow we want to change our Constitution and we have the mandate to do it. What should be our immediate priorities?

I think that before we embark on this review exercise, we have to agree on how this is going to be conducted in the first place, who is going to carry out the exercise and who will ultimately adopt or reject the new constitutional provisions. This time round, as opposed to 1968, it will have to be the people of Mauritius. We need to have an independent exercise with the people making their representations and coming up with proposals, based on which recommendations will be made. The process has to be agreed first because otherwise we are going to lose our time.


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