Mauritius: Milan Meetarbhan - "It's unfortunate that a challenge to the conduct of a nationwide general election is not going to be heard by the Supreme Court"

interview

An apparent calm seems to have come back to the island. The electoral petitions filed by opposition parties are taking centre stage and Roshi Bhadain's challenge to the conduct of the last general election was quashed. We sit down with Milan Meetarbhan, constitutional lawyer and political observer about his take on these events.

If you look at the political situation today, you will notice that we went through a lot of turbulence with three protests, two of which were impressive and then we reached a period of calm, almost serenity. Is that your observation too?

I am not sure that I would necessarily agree with your view of the current situation. I think there is still a lot of concern about the future, about governance and there is no clarity as to where we are going economically. It's probably the first time since independence that people do not see anything promising on the horizon. Even when we went through the 2008-2009 global economic crisis, we could still see one sector or the other showing resilience and future prospects. This is not the case today.

Is it because of Covid-19?

No, I think Covid has become a convenient excuse for many governments and has at times enabled them to attribute their failings to it. In Mauritius, the situation was bad well before we were hit by Covid. There is no doubt that the pandemic will have serious consequences on the global economy but there is also no doubt that the capacity for individual countries to bounce back may vary depending on the state of the economy preCovid. Here, both national economic indicators and the financial standing of major public sector corporations were indicating serious challenges before March 2020.

It's a matter of appreciation, isn't it? Some might say that without Covid-19, our airline for example would still be flying high today. Don't you agree?

No! This is not a matter of opinion. There is one objective way of assessing the financial health of a country or a company and that is by going through national economic indicators or the financial accounts of a company published before Covid.

Are you talking specifically about Air Mauritius?

I am not talking about any specific company. Air Mauritius is not the only company that was facing serious difficulties before Covid-19. If you look at the national accounts and the economic indicators prior to March this year, you will objectively see to what extent there were serious economic challenges. In addition, if you look at the accounts of some major State-owned or State-controlled corporations as at December last, there were clear indications of poor performance. These challenges of course got worse with the worsening global situation due to coronavirus but the problems cannot be blamed entirely on the virus. Even if the global economic situation is bad, if our national economy had not been in trouble before, we would have been more resilient and better equipped to recover. I believe we have to make an honest appraisal of where we were before the pandemic and where we are now. If we don't, we won't be able to find honest solutions.

And where were we?

I believe the facts speak for themselves...

What are these facts?

If you look at the economic situation of our country at the end of 2019, the level of indebtedness, the way our parastatal and Stateowned companies were performing, if you look at governance issues in the public sector, the level of confidence in our institutions, there were serious issues even before the pandemic. If you add to that the major changes that have occurred, like the ones in the financial services sector, unrelated to Covid-19 then we can have an objective assessment of the state of the nation prior to the pandemic.

Are you talking about the end of the DTAA with India?

Not just that. A whole range of skewed policies, extreme politicisation, deliberate weakening of institutions, lack of integrity and transparency, economic mismanagement have had a big impact on the state of the nation. In our case, one of the biggest conglomerates was dismantled within a few days without due process. We cannot underestimate the impact of that on investor confidence. We are not always aware of the extent to which international law firms, international fund managers and prospective foreign investors monitor the situation in target jurisdictions and how they react to anything that threatens the security of their future investments.

Are you saying that the closing down of the British American Investment that happened in 2015 is still haunting us today?

I believe that confidence in institutions is one of the primary concerns of investors and their advisers, whether they are investing in the domestic economy or in the global business sector, particularly when they are considering doing business in or structuring investments through a small far away jurisdiction. Both international and domestic investors must have confidence in our jurisdiction, in our institutions, in our regulators, in our courts and in the governance of the country in general. If these investors take the view that there was no due process in the actions that the government took in 2015, the confidence will not be there.

Wouldn't the investors take the view that the government inherited a Ponzi scheme and put an end to it?

I am sorry to say that I don't think that global investors and their advisors have the same definition of a Ponzi scheme as the government of Mauritius does. Their informed assessment of what a Ponzi is may be somewhat different. At any rate, what I am saying has nothing to do with the merits of the case; it has to do with the process. What investors look for, in addition to the return on their investments, is the independence of institutions and respect for the rule of law so that if they invest in a jurisdiction, the regulator will act fairly and if there is a dispute, it can be resolved fairly and speedily by an independent court. These are crucial elements. What I am saying is that the global situation is bad and may get worse in the coming months or years but if we had things going for us as we did during the last financial crisis, we might have weathered the storm better than where we are today. We might have been able to absorb the shocks better.

Be that as it may, the minister of finance has announced a 9% growth as from next year. Isn't that good news?

Even if he is right, and everyone wishes that he is for the sake of the country, when your growth is -13% one year and the next year there is a 9% growth, it is still from a very low base and needs to be viewed in its proper context. Even then, many economists have been expressing their doubt about this level of growth - which could be diffi- cult for any economy anywhere in the world.

Generally speaking, do you agree that Covid-19 was handled well in Mauritius?

I think if you look at island economies globally, there is no doubt that they have fared relatively well for obvious reasons.

What are these reasons?

The fact that they are islands with no land borders, it is easier to control access and they often have smaller populations...

Is Britain not an island?

Yes, it is an island but a big one with borders which are more difficult to control. In the case of small islands, it is more manageable. Whether we should have closed our borders before or managed things better is a matter for debate. However, the procurement scandal for medical supplies that happened during the lockdown has shocked people tremendously and has outraged people more than any of the other scandals of the past few years.

"there is justification for the relatively short time limit for challenging elections. But then this has to be taken to its logical conclusion, which is that the matter itself has to be decided urgently."

Why?

My own view is that people went through very difficult times, were traumatised and were extremely worried about not being able to put food on the table or about members of their family particularly for those stranded abroad, so when they learnt about what happened while they were going through such difficult times, they were shocked. Every citizen felt aggrieved by what they learnt from the disclosures regarding procurement of medical supplies during the lockdown.

This has indeed resulted in a lot of anger, which reached its peak when the Wakashio incident happened, hence the street protests. But those feelings seem so far away now, don't they?

I am not sure I would agree with you. I think the resentment is still there. The Wakashio accident did worry a lot of people; they were concerned about the damage done to our environment and our resources but the reaction to this incident was amplified by the resentment and discontent that had built up in recent years over a series of scandals, poor governance, mismanagement, abuse of power etc. leading up to the medical procurement controversy.

Whatever anger there is, wasn't the prime minister right in saying he was elected democratically and that protests won't change anything to that?

The test of a democratic election is a universal one: free, fair and credible. If we apply that test to the last election, there are two parts to the result: first, what everyone saw and second the allegations regarding polling and counting, which are yet to be proved. The best illustration of what was visible and known about the abuse that is not consistent with free and fair elections is what the MBC did.

As in the Katori case?

Not only that but also what the MBC had been doing over the years, like flouting its legal obligations and misusing taxpayers' funds. In addition, if you have functions organised under the guise of official events funded by the State and involving civil servants but which were, for all intents and purposes, political gatherings, can one still talk of free, fair and credible elections.

Wasn't that the case with the previous government too?

I don't think it was and certainly not to that extent. I don't remember the previous government organising huge public rallies at taxpayers' expense to advertise its electoral promises in the weeks preceding the elections. What happened on this score just before the last elections is a matter of public knowledge. And for me, the use of public institutions like the MBC, government departments and public sector agencies are not only serious breaches of the electoral codes in democratic countries but it also amounts to a disguised form of subsidy to a particular political party. This is a matter of great concern. If there is State subsidy, it should go to everybody. If one party alone benefits from what in effect amounts to State subsidy, the election cannot be free and fair. This is an established and clear fact. Then there are issues still to be established. There are lots of questions, doubts, clarifications sought but not obtained yet as well as questions raised in cases which are before the courts and which are for the courts to decide.

As a lawyer, aren't you shocked by the amount of time cases take before being heard, particularly in an urgent matter like this one?

I think, as many people have been saying over the past few weeks, that since the law provides, and maybe rightly so, that elections can be challenged within three weeks, then the challenges ought to be determined within a short period of time too. One would assume that the reason there is such a short deadline for filing electoral pe- titions is that you cannot afford to have - anywhere in the world - a government in office taking decisions that affect the country - or giving millions away - if it does not have a legitimate mandate. The doubts cast on such legitimacy must be addressed as soon as possible so that no irreversible action is taken by a government whose legitimacy is being challenged. So there is justification for the relatively short time limit for challenging elections. But then this has to be taken to its logical conclusion, which is that the matter itself has to be decided urgently. Given the case load of our courts, the time taken for some cases to be heard or for judgments to be delivered is not always what we would expect.

"I understand their position because they do not want the ruling party to use the judicial review application to delay the hearing on electoral petitions. However, democracy scholars and human rights lawyers who do not have a political agenda would not necessarily take the same view as politicians."

Why do you think the cases are taking that long?

Speaking in general terms, I think that delays have a lot to do with case management and the stand taken by parties in many cases such as delaying tactics that the parties themselves use. In fact, the only global index where Mauritius does not do well is the enforcement of contracts, which basically means the time it takes to settle disputes. Whereas we are usually among the top 50 in many global indexes, on the enforcement of contract index we are not even in the first 100!

Isn't that worrying?

Yes it is, not only in relation to electoral challenges but also in relation the promotion of Mauritius as a financial centre as there are competing jurisdictions where commercial disputes are settled within a few weeks or a couple of months. And I know from my personal experience in the financial services sector that this sometimes weighs heavily in the decision regarding the choice of a jurisdiction where to domicile an investment fund. If investors know there would be a faster resolution in case of a dispute elsewhere, that's where they will invest. This is an area which has not been sufficiently looked at by the administration of justice or the Executive. But overall, there is trust in the courts and the ultimate outcome though there is one common complaint from all stakeholders whether domestic or international, about delays. These complaints are being heard more now with regard to the electoral petitions challenging the fairness of the election.

What will happen now according to you? How long more do we have to wait?

A lot will depend on whether courts accept that they do have jurisdiction over the challenges, constituency-wise and nationwide and subsequently how diligent all parties concerned will be if there is a hearing on the merits. If the courts decide that the election was not free and fair and there is an appeal to the Privy Council, it doesn't have to take that long if the judges of the Privy Council are convinced of the need for a speedy resolution.

In this debate over democratic elections, where does the Electoral Supervisory Commission stand?

How much say does it have? For years, we have been talking about broadening the powers of the ESC though some believe that the commission takes a far too conservative view of its existing powers. Does "conduct of elections" only mean conduct of polling and counting? The other question that has to be asked is whether other institutions have a legal duty to ensure compliance with the act on the findings of the ESC or not. Take the case of the MBC, for example, where the ESC expressed the view that the MBC, which is regulated by the Independent Broadcasting Authority, had prima facie acted in breach of the law. Did the authorities concerned, including the relevant regulator, consider the stand taken by the ESC but decided that no further action was required or did they just ignore the ESC's findings? The population has the right to know. If these authorities didn't do anything, why not? Did these institutions fail to act and why? Was there dereliction of duty? The IBA didn't hesitate to take action against a private licensee during the confinement. So what did they do in the more serious matter of a public entity breaking the law and being told off by the ESC? l

The Village election shave been called for November. What are your predictions as to the outcome: a government victory or a chance for the opposition?

It's hard enough predicting the outcome of national elections traditionally contested by two major parties or alliances, it would be harder still to predict the outcome of local elections contested by multiple ad hoc groups not always aligned to any of the mainstream parties. In fact, this is what local elections should be. However, past experience has shown that whatever the outcome of the village council elections may be, the central government of the day has its own ways of securing the support of district councillors.

The Supreme Court has refused Roshi Bhadain's leave to apply for judicial review of the 2019 elections. What are your views on this decision?

The Supreme Court has reaffirmed the principle laid down in earlier 20th century cases that the only way to challenge an election is by way of an electoral petition as provided under a law voted in 1958. The Court also based its decision on procedural issues.

How do you feel about it as a lawyer?

I believe it is unfortunate that a challenge to the conduct of a nationwide general election is not going to be heard by the Supreme Court. If the Supreme Court were to exercise its supervisory powers over the conduct of a commission established under the constitution and over the decisions of the Executive and other public bodies in connection with a central pillar of a democratic State, this could only reinforce our democracy. Granting leave to apply for judicial review in this case would have made a huge contribution to the progressive development of Public Law in Mauritius.

The opposition political leaders have welcomed the Supreme Court decision. What did we miss?

I understand their position because they do not want the ruling party to use the judicial review application to delay the hearing on electoral petitions. However, democracy scholars and human rights lawyers who do not have a political agenda would not necessarily take the same view as politicians. l What if Bhadain appeals to the Privy Council? If there is an appeal to the Privy Council against the decision of the Supreme Court not to grant leave, this would not put an end to what has been described as delaying tactics.

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