The number of protests sprouting throughout the country is unprecedented. And so are the legal issues we are dealing with. We approached Rajen Narsinghen, one of the organisers of one of these protests and senior lecturer in law and management at the University of Mauritius for his views on what is going on. He leads us through the labyrinth.
Several protests in front of the national assembly have been organised to alert international organisations. Aren't you worried that that might be perceived as antipatriotic?
When a domestic system collapses, you have no alternative but to alert international organisations and international NGOs. The few accusing people of being unpatriotic do not fully grasp the relationship between the domestic legal order and the international legal order or they are blind supporters of the current regime. While the Judiciary is relatively independent, it is trapped in procedural hurdles and ruses used by some counsels representing Government.
Why now? Where were you all these years?
The situation today is unprecedented.
What's so unprecedented about it?
Recently, the American State Department, Human Rights Committee, V Democracy , the Financial Action Task Force (FATF), the European Union (EU) etc. have all hit very hard on the current government. This is unprecedented. It is a drift towards dictatorship and some assert that we are already in a constructive or subtle and legalistic dictatorship, and Covid was used to consolidate this dictatorship by trampling on democracy and human rights. Therefore the initiative of the 30 parliamentarians who have signed the petition asking for the speaker's resignation has to be com- mended. They hail from all parties, including the MSM. Unprecedented again!
How effective are protests by a handful of people realistically?
Protests and rallies are important means for the citizens to give free vent to their grievances and complaints, especially when the government does not listen and keeps on oppressing people.
But these protests are on a very small scale, aren't they? With Covid, there is no alternative but to organise symbolic protests. At present, with Covid regulations, the street protest cannot regroup more than 50 people. Therefore, symbolic protest assumes all its importance. The demonstration of 10 former MPs, though symbolic, had a huge impact. You just have to read the comments on social media and newspaper websites. The few people organising protests and rallies - though small - are galvanising public opinion for sure. Only sycophants will praise the government when human rights and democracy are being breached and corruption and drug trafficking are reaching unparalleled levels. And a government which does react to objective criticism is doomed.
But even if you apprise international organisations of the situation in Mauritius, what will that change? We are a sovereign country, aren't we?
It is true that the sovereignty of a country is a sacrosanct principle in domestic constitutional law and it articulates with the principle of non-interference in public international law. However, though, Mauritius has endorsed a dualist approach in public international law, it cannot ignore the numerous treaties and protocols ratified at international, supra- national and regional levels in the field of human rights and democracy, like the International Convention on Civil and Political Rights or the African Convention on Human and People's Rights or the Inter- national Parliamentary Union. Therefore, it is legitimate for nationals to alert such UN bodies or regional organisations, or even credible NGOs, especially at a time when local institutions are crippled and dance to the tune of the Executive. The Judiciary, though a safeguard is so entangled in procedural subtleties that the international avenue is the only recourse.
What kind of sanctions can a sovereign country fear? At worst moral ones?
True to a small extent, but sanctions can also be concrete. Because of the failure of the Independent Commission Against Corruption and the Financial Intelligence Unit to tackle corruption and money laundering, Mauritius is on the grey list and black list of FATF and the EU. Likewise, the noncompliance of Mauritius with the rulings of the UN Human Rights Committee will lump our island - once a model and role model in Africa - in the category of Rogue States. And some countries and organisations like the US, EU, and Scandinavia etc. always link their economic aids with compliance with human rights. So what appears to be moral sanctions could become tangible economic sanctions.
But all the question of independence of some of the institutions you are talking about did not start today, did it?
No, it didn't. Different prime ministers have made abuse of the system to a certain extent. There is a systemic problem, which only major constitutional reforms can address. However, the abuse since 2014 up to now is unprecedented and of such magnitude that Mauritius will be on the hit parade in Africa. At one time, Mauritius was a role model in relative terms in Africa. Today, we are sliding backwards and we have become a joke.
What's so terribly funny about us?
Government today has a complete grip on all our institutions. Just take one example: the ICAC whose director general is appointed by the PM, has just had his contract renewed by the same PM. This, while an inquiry into the same PM has been dragging on for years! Another glaring example of is the police. The head of the CCID is on contract. How do you want criminal investigations to be conducted in an independent and impartial manner? Three consecutive commissioners of police have been appointed on a contract. Why? Security of tenure is a sine qua non condition for the independence of the CID and the commissioner of police. The current one has a lot of merits but the fact that he is on contract may undermine his authority and compromise his independence. I consider that all the contractual appointments are deliberate attempts to circumvent the letters and spirit of our constitution.
Talking about the police, the Kistnen case has highlighted the fact that though the magistrate and the DPP, along with the Avengers' are doing their best to shed light on the suspicious circumstances in which he was killed, they depend on the police 100. So what happens in such situations?
In my whole career as a jurist and specialist of public law, I have never seen the police mishandle a case in such a blatant manner. Initially, they wanted to make up a crime into suicide. It is a step above Bollywood films. Some obscure police officers have concealed or squandered evidence. Unprecedented! Even the police in some worst African, Asian or Latin American countries cannot match the manipulation perpetrated by the squad behind the Kisten's investigation. Many such accomplices should have been behind bars. Up to now, there has not been a single sanction. An unparalleled dysfunctioning of this specific squad. Are they accomplices? Are they getting instructions from higher quarters? Who? For the first time there has been a sort of extra judicial killing and seven or eight extra judicial killings linked to procurement. And, because of gross initial mismanagement of the case, there are risks that soon this case will go into oblivion.
"Initially, the police wanted to make up a crime into a suicide. It is one step above bollywood films."
How did we reach such a situation?
On one hand, some use violence as in the sad case of Gaiki and, on the other hand, there is at least a very strong perception that the police are being subdued to the Executive and, worse, some believe that occult forces with an armada of bouncers and occult killers can influence certain squads in the police, especially the most sensitive ones - the CCID and the ADSU.
The Angus road is similar. No inquiry by the ICAC or the police so no prosecution?
Regarding the Angus road, I believe that the prime minister must clarify matters and clear his honour and the sooner the better. In the wake of this sensitive case, he should not have renewed the contract of the DG of ICAC. A new institution and more importantly a new mechanism of appointment has to be devised. No PM or even a president, a stooge of the PM, should have a grip and full control on the appointment of the DG of ICAC.
Someone has to appoint him/her, though. Who should it be?
Possibly the Judicial and Legal Services Commission or a parliamentary caucus with parity between the government and opposition. Any government meaning business to curb corruption or money laundering should review the current system. Very often, the major protagonists of corruption and money laundering come from the rank and file of those in power or their dear and near. In light of the dysfunctioning of the CCID and ICAC, people should not expect anything concrete from the string of extra judicial killing and alleged corruption cases. The Executive has a total control. No illusion!
The Commission of Inquiry into Betamax has met with an unexpected response from Veekram Bhunjun: a judicial review to stop the inquiry on the grounds that all the questions had already been answered by the judicial committee of the Privy Council. Were they?
The Commission of Inquiry on Betamax is the strangest thing happening in Mauritius. Unprecedented again. A commission of inquiry would have been fully warranted at the very beginning of the whole Saga. Initially, I was in favour of rescinding the contract with Betamax following the allegations and arguments given by government. Alas, they proved to be fallacious and frivolous as pointed by the Privy Council.
Wasn't the contract skewed in favour of Betamax?
That's what some bona fide people were claiming. However, soon after the contract of affreightment was concluded with new companies, the prices were higher than those agreed with Betamax and even the price of oil was higher than what was practised by Mangalore. The Judicial Committee of the Privy Council (JCPC) demolished the initial judgment of the Supreme Court, which was wrongly motivated in law.
"The terms of reference are skewed, focusing on the illegality of the contract with Betamax - A question which had already been determined with surgical precision by the JCP."
Won't the commission of inquiry answer some questions not answered by the JCPC?
Like the circumstances in which the contract was awarded?
The JCPC stated in no uncertain terms that the contract was legal and in conformity with the Public Procurement Act and the decision not to pay by the State Trading Corporation was in clear breach of the contract. Who is behind the screen of the STC? Behind the veil of incorporation, there is the PM, the minister of commerce and other ministers. One would have thought that after the big slap of the Privy Council, one would have complied and turned the page. Alas some like to persist and do even worse.
What do you think the aim of the commission of inquiry is then?
There has been a tendency to use commissions of inquiry as a political weapon. Look at the string of commissions of inquiry set up recently, like in the case of Gurib, Bhadain and the Wakashio. They are being used either to whitewash people or to kill political opponents. Now with the Betamax commission of inquiry, we are in a delusional world, a world of Henry Michaux, a phantasmagorical one. Worse, we are dragging a sitting judge into the political arena. Also, will setting up the commission not amount to contempt of court or scandalising the court? Legitimate questions! We are right in a political conundrum and legal imbroglio. Du jamais vu! We are in the middle of unprecedented political and legal experimentation which may undermine the very stability of our legal system and shake the foundation of a political system premised more on vengeance, retaliation and political vendetta.
But this commission was recommended by the leader of the opposition, wasn't it?
Some members of the opposition were trapped. The terms of reference are skewed, focusing on the illegality of the contract with Betamax - a question which had already been determined with surgical precision by the JCP. The terms of reference do not press on who the real culprits behind the decision to rescind the contract in such a reckless manner are. Who should pay and be held accountable for squandering Rs5 billion?
The electoral petitions do not seem to get anywhere and we have not even reached the merit stage in some cases and the appeal stage in others. Is the Judiciary able to deliver swift justice? Let me remind you that, for the first time, such massive protests and challenges of the 2019 elections have taken place. Many grounds never invoked after 53 years are being raised. Deregistration of voters was acknowledged and confessed by the Electoral Commission to the tune of 6,000 and later the figure 16,000 was hinted at. Some computer experts comparing the lists of 2014 and 2019 allege that there was a deletion of 35,000 voters! Remember that the government won by only 23,000 national votes! Recourse to the computer rooms which was not allowed by the law. Stranded ballots in nature and ballots which were not embossed. Abuse of MBC TV and last minute manipulation of speech of the ex PM. Alleged cases of electoral bribery of such magnitude which by far seem more serious than the case of Ashok Jugnauth. However, without pre-empting the outcome of the present petitions, people could see the emergence of many shocking practices during the cross-examination in the Supreme Court which could be determining factors for the case. I hope that judges do a good objective job, as done before but, whatever happens, it will probably be incumbent on the Privy Council to lay the framework of genuinely free and fair elections for now and the future and quash the elections in a few constituencies. So irrespective of the determination of the Supreme Court, the oracle will be the Privy Council as in the case of Betamax. After vox populi vox dei, we will be blessed by the voice of the Privy Council, most probably towards the end of 2022.
Considering the consistent delays, do you think the petitions will even reach the Privy Council by then?
Unlike the Supreme Court, which does seem to give priority to constitutional law cases or because of inherent hurdles, I have no doubt that the Privy Council will entertain motions from the parties to expedite the cases. So, I am pretty sure that if some counsels do not use ruses and the Supreme Court does not further delay because it is trapped by procedural formalism, the Privy Council will spare no effort to dispense justice in the true sense of the word, based on the time frame of Ashok Jugnauth Vs Ringadoo.
Why is the Supreme Court taking that much longer?
Without directly blaming the Supreme Court, we can see that it is caught in the web of procedural tabular formalism. Cases drag on ad eternam and this is unacceptable in a democratic state. We tend to forget the famous maxim of the legendary William Gladstone and adopted by Lord Denning that 'Justice delayed is Justice denied'. It is sad that countries like Kenya, Malawi etc that were worse off than Mauritius in terms of rule of law and judicial activism can give a judgment in the field of constitutional and administrative law within eight months. Here, after two years, we are still at the preliminary stage in some petitions. For nearly six years now, people like Milan Meetarbban, Jack Bizlall, Alain Laridon, Jocelyn Chan Low, Joseph Tsang Mang Kin, myself and others have been ad- vocating for real constitutional reforms. I have been pushing for a special constitutional and administrative law court or at least a specialised division of the Supreme Court. A case entered by way of constitutional review for challenge of elections since early 2020 by Dev Sanassee and others, possibly stronger than some petitions, was fixed last week for May 2022! Incredible. It means that next elections will take place before the determination of this important constitutional test case. Without blaming the Judiciary, I can say that it is a shame and a disgrace for a country governed by constitutionalism and the rule of law, in theory enshrined in our constitution, to delay such cases in this way.