This week, Weekly speaks to Rajen Narsinghen, head of the Law Department at the University of Mauritius, about the raft of bills being passed in parliament in an election year. He shares his concerns about the impact on democracy, the lack of separation of powers and the "dangerous and unprecedented" abuse of our institutions.
There have been a number of bills presented in parliament and you have been vociferous against them. Why?
I have not been vociferous for the sake of being vociferous. As a human rights academic and activist as well as someone specialised in constitutional law, I have been following the bills presented in parliament very closely. When they have been in compliance with democratic principles, human rights and good governance, I have said so. I have, however, noticed that there have been attempts in the recent past to undermine some basic features of our democratic system. It is my duty to point that out too. And, since January 2015, we have seen a series of what I think are calculated and concerted attempts to undermine our democracy.
What kind of attempts do you have in mind?
I will start with the first one. When you look at our constitution, the commissioner of police is a constitutional post, unlike in the UK or other European countries. It is true that section 71 of the constitution places the police commissioner under the title of Executive, but I think the constitutional framers wanted to deliberately have a more sophisticated and enhanced separation of powers within the Executive. Professor De Smith, who is the founding father of the constitution, published an article where he explained why these constitutional posts were created and where they departed from British practices. When this government started to act in 2015, we saw that some members of the Police Force, including the commissioner, were at the beck and call of the government too often. I understand that after a change of government, we may take people to task where they have faulted and inquire, but all the inquiries have to be done within the parameters of the law. We saw a number of people from the previous regime arrested and the courts and the director of public prosecutions (DPP) have been able to show that all these cases were concocted and no serious evidence adduced. We have also seen a differential treatment meted out by the police: for trivial matters, the police are prompt to act but, at the same time, a man in a higher position whatever crime he has committed, is not bothered by the police these days. Many MPs and ministers of the current government are not taken to task and police inquiries go on and on in spite of prima facie cases against them or serious accusations being made.
Publishing material on the internet, for example, is a very serious crime if you take on powerful people. On the other hand, in some quarters close to the government, allegations are being made on the internet, through their own yellow papers etc. and nothing is done by the police. In contrast, the least comment made by the common man against the government results in arrest and prosecution. Double standards!
Did the same thing not happen in the past?
No. There could have been abuse by the police in the past, and I wrote an article 11 years ago to talk about the democratic deficit in Mauritius and about our institutions not being able to respond to the ideals of a democratic society. But I am afraid that since 2015, the magnitude of abuse of these institutions has become very dangerous and unprecedented. They are totally at the beck and call of the Executive. Can you imagine that the police commissioner, of his own volition, went to court to ask for a judicial review of the decision of the DPP not to prosecute a case! This is unique!
Can't citizens challenge a decision of the DPP?
Yes, any aggrieved party having sufficient interest can do that, but for the commissioner of the police, another arm of the Executive, to do it is something unheard of in any Commonwealth country and very exceptional in other jurisdictions
Why shouldn't he challenge a decision he does not agree with?
Yes, it could be done, and legally, the court has a right to review the decisions of the DPP. But when cases in Commonwealth countries and in the UK are reviewed, you don't see this approach taken by the Police Force. The police are supposed to inquire and then the DPP, in an independent manner, reviews the file using criteria to reach a collective decision about what to do. Already there were apprehensions that the police were under the thumb of the government, but today, that perception has increased. Now, take the Independent Commission Against Corruption (ICAC). That is even worse. Look at the way the director general of the ICAC is appointed. What happened after the last general election? The following day, the ICAC headquarters were surrounded by the police. That means the director was booted out the day after the government came to power. When the new director was appointed, there was no consultation with the leader of the opposition.
What does 'consultation' mean?
That means you discuss with the leader of the opposition and if he has an objection, where a person is politically partisan or does not have integrity, the person normally should not be appointed. In the current case, the leader of the opposition at the time, Paul Bérenger, said that he had not been consulted.
Then Prime Minister Anerood Jugnauth said he had sent him a letter and that was consultation enough. Don't you share the same definition?
No! Writing to someone and going ahead with the decision is not consultation. I really think the director of the ICAC should be appointed by the Judicial and Legal Service Commission.
But he is not a 'legal' person, is he?
Why not change the appellation to the Judicial and Paralegal Service Commission to include the appointment of the ombudsman, members of the Electoral Supervisory Commission and other constitutional posts? Appointment by the president who is himself a stooge of a political majority may not be appropriate in light of recent appointments marred in controversies.
These are systemic issues which can hardly be blamed on this government alone.
I am not saying members of this government are the sole culprits, but these systemic issues have to be addressed. I think parliamentarians and ministers should remember that today they are in government and tomorrow, they might be in the opposition. I don't think they realise this. So if we really want to combat corruption, we have to appoint not just the head of the ICAC but its other members too, through a really independent institution.
Are you saying there should be no political nominations?
No, I am not against political nominees. That's bound to happen. In a political system, there should be a blend of anonymous civil servants and political nominees who are bright and who know how to keep their distance from their political masters. It's not just institutions but also mindsets that have to change.
So the state we are in is not entirely the fault of the politicians, is it?
Definitely not! In fact, the Executive reflects what we have down below. In the past 30 years, there has been phenomenal development in terms of houses, cars and standard of living, but in pursuit of these material achievements, there has been a degradation of morality in pursuit of that materialism. There is also a rot in the education system. Morality, good governance, democracy etc., we are not teaching those to our kids. It has to start right from pre-primary school. If we want to cure these problems, we need a long-term strategy.
Coming back to the law, haven't there been good bills like the declaration of assets, for example?
The good thing about the bill is that it has tried to broaden the scope of coverage to include civil servants, the Judiciary etc. However, it was a missed opportunity. Those who are indulging in corruption are clever enough to put the assets in the names of the wife or the children. I think they are shrewd enough to use other ways. Do the ICAC and the Mauritius Revenue Authority (MRA) have qualified people to find out who is hiding his wealth where? Another important point is that judges have said that they don't want the ICAC to be the depository body of their declations. And they are right. Now, if judges don't trust the ICAC, why should civil servants or opposition politicians trust it? So entrusting the job to the ICAC is a major problem.
The judges didn't say they were worried that the ICAC was not independent, but that there was a conflict of interest.
They have to be diplomatic. I don't want to stop at the arguments they put forward, but to go beyond that. If I am a civil servant who is not doing anything illegal, I would want to declare my assets, but I would want to do so to an institution that I can trust. So if the ICAC has a political nominee at its head and he can use the information he has been entrusted with, that's very dangerous. In a country where you also have the principle of the rule of law, why give judges a preferential treatment? Why should there not be one depository body that everybody is accountable to?
Don't you think the more laws we have, the better for our democracy?
Not at all. There is no point in having a lot of laws which remain on the books without any implementation or enforcement and are just an eyewash and allow people to go around and use other ways to hide illegal wealth. The current government made a number of promises in their manifesto, so now when they go to the electorate again, they will say that they tried to pass them but couldn't and blame the opposition. Some of these laws may also be intended to trap their political opponents.
The political financing bill did not draw any consensus. Does that surprise you?
No! The framework proposed does not help the emergence of new political parties. For example, the private sector would not be interested in financing a party like LALIT, Rezistans ek Alternativ or Les Verts. Those proposing the bill knew that and they also knew that it wouldn't go through.
So why did they present it?
I think they wanted to show people that they promised something, they tried to do it and Xavier-Luc Duval, Paul Bérenger and Shakeel Mohamed are the bad guys who have stopped them. There are also a lot of loopholes: OK, you are saying you don't want companies to give donations, but if the party itself has some side business which is a money-minting machine, auto-financing, has this new law addressed that issue? If you have invested money - whether it is clean or comes from drugs or whatever - are there any laws to prevent you from using the proceeds? The law as presented, addresses only financing at constituency level - Rs1 million per constituency and Rs80 million in total. But a political party can spend Rs800 million at national level and that has not been addressed. The MBC Act raises the issue of fair broadcasting throughout the year - not only during the political campaign - and no one has raised the question. And right now, it is indirectly financing the political parties in power. If I were in active politics, I would take the MBC to court. The MBC has a legal obligation to be fair.
But was it fair before 2014?
No, it was not. But the abuse was certainly not of this level. The levels we have reached are unprecedented. Now when you turn on the news, out of 30 minutes of news, at least 15 minutes is dedicated to the government's activities, if not to the prime minister himself. Also, look at what is happening with the private radios; look at how new stations have emerged in the middle of allegations that they are at the beck and call of those in power. So I have a lot of apprehensions about our democracy. It's as if there is a calculated, multi-pronged approach to shift from a democratic society towards a dictatorship.
Isn't the word 'dictatorship' exaggerated?
Not at all. There are obvious signs. Complete control of the media, new licences given to partisan radios, how companies like Mauritius Telecom have become an instrument of the government, something unprecedented! No one can say that even 1/10 of what is being done today was done by the previous government, although there were shortcomings then too. Today, we have the attempt to undermine the DPP by placing political nominees above him and the recent attempt by the ESC to challenge a chief justice. These are examples of a clear departure from past practices and is a way of shifting towards a dictatorship and a complete control by the Executive. Take the central bank. When the previous governments were in power, there was no political interference. Look at what has happened there now. The Financial Services Commission (FSC)? No independence. It is headed by a political guy with political ambitions. I was a director of the Bank of Mauritius (BoM) and at that time, there was a separation between the BoM and the FSC to separate the banking and non-banking institutions. Today, the deputy governor of the BoM has become the chairman of the FSC! Never before has this been seen in any western democratic society.
The BoM has become an instrument of government. The government takes a decision and then asks the BoM to simply ratify it! Unprecedented again! Look at the appointments at the ESC. Up until now, nobody that I know of has ever complained of any bias from the electoral commissioner. Today, we have clearly partisan people being appointed on the commission. Another member comes out and openly makes a political statement supporting the prime minister! Unprecedented! If you look at the Presidency, the same thing. Cassam Uteem and Kailash Purryag both had political affiliations but kept their distance from politics and politicians. Mr. Uteem even resigned when a law which was not in conformity with democratic principles was presented. Mr. Purryag too, no controversies. But with Mrs. Gurib-Fakim and Mr. Vyapoory, we cannot talk about total independence. Parliamentary democracy with a speaker perceived as biased - unlike people like Sir H. Vaghjee, Sir Ramesh Jeewoolall, Mr. Dev Ramnah and Mr. Purryag - is under real threat and parliament is becoming a mere instrument of the Executive. It fails to be a platform for accountability and control.
We were once the good student of Africa. Where are we today?
You just have to look at our ratings, in spite of the fact that our NGOs and citizens are not giving enough information to the rating agencies. We are still regressing while other countries such as Ghana, Rwanda are making strides when it comes to the economy, training of the people, democracy, human rights and so on. I think we have to address all these issues, otherwise I have a fear that we might end up in a dictatorship. Not 'a sort of dictatorship'. In a fully-blown dictatorship. In fact, the Safe City project, especially with facial recognition, is a lethal blow to sections 9 and 15 of the constitution with regard to the privacy of the home and freedom of movement. It is another proof of a concerted strategy to shift to a dictatorship. Once the Safe City project is operational, it will complete the concerted strategy to torpedo democracy, which Mauritians take for granted. We need to be alert, sensitise others and act before it is too late.
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