François Gael Sarah
We want to be a free society – but do we really understand what it entails? Are we ready for political freedom? A free society cannot maintain itself or hope to survive in integrity, in the face of the forgetfulness, ignorance, and subversion of its constitutive principles: forgetfulness brought on by capitalistic consumerism, ignorance maintained by tribalistic instincts, and subversion perpetrated by corrupt partisan establishments.
Political freedom is conditional upon the ability of institutions and the public to hold the arbitrary sway of the executive in check through legitimate avenues of action.
It requires that all the officers and functionaries of the state adhere sincerely and practically to the ultimate grounding and purposes of policy and law, namely, in the common good of the nation, the welfare of the citizenry, and the efficient conduct of public affairs. At the same time, it is also vital for the citizenry to educate itself in the spirit of the law and of the institutions; in order, precisely, to be in a position to hold their representatives and the officials to account.
What is the spirit of our laws and institutions? What are the constitutive principles of our political society? Many political parties in this country have long been working and agitating for constitutional reforms. There are those who want to reform the electoral system to remove the necessity of declaring one’s ethnic identity in order to stand as candidate for general elections. There are others who seek to create an executive or semi-executive presidency elected by universal suffrage. Others still, no doubt, want to overhaul the whole existing fabric and dabble in a game of constitutional trial and error (they never seem to be mindful of the putative cost of their fantasies).
Before even considering the particulars of the constitutional reforms proposed by political parties, it is the mindfulness and promotion of the principles that is paramount. After all, they are the principles we are meant to live by as a normative national community. We should first seek to ascertain, identify, and state the fundamental principles enshrined in the current law of the constitution and in the institutions or constituent bodies of the state.
Where can we ascertain and identify those fundamental principles? The answer is simple: the law of the constitution, which should occupy the primary place, followed by judicial precedent, and, finally, the stock of the political history and evolution of our nation. On this basis we could try to identify and state some of these principles.
- Sovereignty
We should look no further than the 1st Section of the Mauritian Constitution itself: “Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius”. Here, we see the notions of sovereignty and democracy enshrined at the very beginning of our constitution. Sovereignty is not just a legal concept that refers to a state of affairs satisfied by abstract conditions. It is much more than that as it encapsulates the absolute character of the independence and integrity of the Mauritian state: the independence and integrity of the people, of the territory, and of the government of Mauritius. The Mauritian state is not subordinate or subject to any external, foreign power: the statement of sovereignty refers both to a current state of affairs and to the means government uses in order to maintain it. 
The public is thus entitled to ask itself whether government policy has consistently upheld each of the three attributes. In the perspective of constitutional reforms, the public can also ask itself what means can be mustered and used to attain that end. What better safeguards could be devised in order to make sure Mauritian sovereignty is protected and guaranteed? How do we make sure the Mauritian people retains control over its own affairs and territory in the face of geopolitical pressures and the interested willingness of politicians to bow to those pressures? How do we hold politicians truly accountable for decisions contrary to those principles outside the partisanly-framed/-funded electoral cycles?
These questions show us how policy and constitutional principles are never separate – policy will either apply constitutional principles or will seek to subvert them. As a community of destiny, the future of our nation is conditional upon a reasoned and patriotic adherence to constitutional principles: We would rather be independent than be the bondservant of another power…We must refuse to be either a neo-colony, an administrative unit of the World Order run by the old colonial powers, or an ultramarine province of some imagined “Mother Country”.
- Democracy & Separation of Powers
Who is sovereign in Mauritius? In a democratic state, sovereignty is vested in the people. It may be exercised directly or indirectly. In Mauritius, the body of citizens, or electorate, exercises its sovereignty in the election of their representatives to the National Assembly and in plebiscites pertaining to the most important constitutional amendments. The legislative and executive powers of the state are exercised by duly elected representatives of the people of Mauritius. The people does not directly exercise those powers, but rather decide who governs them in the exercise of those powers. Popular choice of government is thus one of the fundamental principles of our Mauritian democracy.
But popular choice and popular mandate, in and of themselves, do not constitute a sufficient safeguard for the people against the possible and eventual arbitrary overreach of government. There needs to be a mechanism whereby the people, if they feel aggrieved in their rights, may without fear seek redress. In other words, there needs to be an institution and processes whereby the rights of the people may be protected and vindicated. The second fundamental principle of our Mauritian democracy, therefore, is that the fundamental rights and liberties of the citizens should be protected by an impartial and independent judiciary.
It could be argued that the independence of the judiciary is the precondition for its impartiality and efficiency. Therefore, we need to look to support and defend the independence of the judiciary, especially in the face of an overbearing Parliament.
This leads us directly to a third principle of our Mauritian democracy – namely, the separation of powers. That is, the idea that each of the three powers of government – legislative, executive, and judiciary should be separate and independent of one another. Practically, however, and in view of the adoption of the parliamentary government by Mauritius, as a legacy from British constitutional practice, the legislative and executive powers are concentrated in the hands of the party enjoying a majority of seats in the National Assembly and whose leader is expected to form the government. A future constitutional convention or constituent assembly will have to re-appraise the rationale for maintaining or discarding such an arrangement.
It is clear to any impartial observer that this concentration of legislative and executive powers has tended to weaken the independence of institutions and the spirit of political freedom. Too much is left to the discretion of the majority party and its leaders to exert due restraint in the exercise of the concentrated powers. Each party or government has its own style and its own arbitrary notion of restraint – always erring on the side of too little restraint. It is urgent, therefore, that constitutional restraints be introduced to bind the government to the fundamental constitutional principles of the state. Furthermore, means must be devised so as to give the electorate the power to hold the government accountable for policies that do not conform to constitutional principles.
- Rule of Law & Equality under the Law
The basic idea of behind the concept of the “rule of law” is that no one is above the law but the law is above everyone. Everyone ought to be equally subjected to the law. Everyone, citizen and non-citizen (minors and aliens), are to be equally covered by or subject to the general laws of the state, rather than exposed to arbitrary, individualized commands. And those laws must be impartially applied without fear or favour by an independent judiciary.
Section 2 of the Constitution clearly spells out the notion of constitutional supremacy, that is, any exercise of legislative power by Parliament is subject to and limited by the provisions of the Constitution as supreme law. However, in reality, constitutional supremacy in Mauritius is itself limited by virtue of the fact that Parliament, if so minded, under the conditions prescribed by law, could easily amend the Constitution and mould it after its own arbitrary desires.
Here, again, the British legacy of parliamentary sovereignty has left a strong impress on the party political system. The concentration of powers in the hands of an omnipotent prime minister constantly threatens to neutralise the invocation of and recourse to constitutional supremacy. If the will of Parliament has in the past prevailed against the idea and practice of constitutional supremacy, it is largely because the Mauritian electorate itself has entirely surrendered itself and its rights to partisan machineries, and because public opinion is not sufficiently seized of the importance of the issue. These partisan machineries in turn have no desire or intention whatsoever to implement the supremacy of the constitution and the rule of law, and still less, to uphold it as one of the cornerstones of Mauritian democratic sovereignty.
- The Rights and Liberties of the Citizens
Any free legal society rests on the legal recognition, framing, and entrenchment of existing natural rights and liberties. This transforms those natural rights and liberties into political ones. These exist in addition to the purely political or civic ones which have no rationale outside of a political community.
It is incumbent upon the government to maintain law and order so that citizens may enjoy their civic rights and liberties in security, and, thus, contribute to national wellbeing and progress. Rights and liberties do not exist without corresponding duties and obligations. A future bill of rights will also have to include duties and obligations: of the citizens to the government, and of the government to the citizens.
It will be important to stress the relation the due provision and protection of rights and duties bear to the pursuit of the common good of the state as political community. And, that any government policy concerning the same be appraised by the criterion of the common good such as it is implied in the constitutive principles of the state and clearly expressed in directive principles of state policy.
Abusive practices in procedures which are detrimental to the fundamental rights of citizens and to basic principles of justice will need to be removed.
A citizenry, which, in its majority, is ignorant of its rights and duties is an easy plaything in the hands of corrupt politicians and officials. Democracy rests on the ability of citizens not only to fight for their rights through lawful demonstrations and the media, but also on their ability to seek redress and expect a swift and fair hearing to their grievances. Here, we come again to the crucial role played by an independent and impartial judiciary in the normal democratic life of a state.
Conclusion
The question of constitutional amendments in the face of arbitrary government and the breakdown of institutional integrity must be recentred upon an adequate understanding of the constitutive principles of the state. Any eventual exercise of constituent power by the people will have to entail consideration, deliberation, and resolution over these principles before any fundamental amendment is enacted. We need to ascertain the elements of stability within our current system while recognising the factors of instability and the catalysts of decline. In the second part, we will be looking at some of the weaknesses of the current system that makes our institutions vulnerable in the face of partisan machinations. (End of the first part)
Note
(1) “Political” here does not refer to the partisan machinery and to the realm of party politics as such. There is a terrible abuse of language in Mauritius to the effect that political has come almost entirely to mean “party political”. We need to fight and neutralize this abuse of language because it perpetuates the alienation between the political and the social, and only serves to single politics as the exclusive realm of party politicians and of the party machinery. On the contrary, “political” refers to the state, from the Greek word “polis” meaning “city-state”. Therefore, politics and the “political” pertains to all members of the state as a community or society, that is, to all citizens.
Sources and References
The Constitutions of Mauritius, the United States, of India, of the Republic of Ireland, France.
Cases
Vallet v Ramgoolam [1973] MR 29 Mahboob v Government of Mauritius[1982]MR 135 The State v Khoyratty (Mauritius) [2006] UKPC 13
Books
Austin, Grenville. Working a Democratic Constitution: A History of the Indian Experience. New Delhi: Oxford University Press, 1999 Dicey, Albert V. Introduction to the Study of the Law of the Constitution. Reprint of the 8th edition by Liberty Fund Inc.; London: Macmillan 1915 Madison, James et al. The Federalist: A Collection. Indianapolis: Liberty Fund Inc., 2001 Marshall, Geoffrey. Constitutional Theory. Oxford: Clarendon Press, 1971 Mathur, Hansraj. Parliament in Mauritius. 2nd ed. Rose-Hill: Edition de l’Océan Indien, 2017 Meetarbhan, Milan JN. Constitutional Law of Mauritius. Mauritius: 2017 Oakeshott, Michael. Lectures in the History of Political Thought. Exeter: Imprint Academic, 2006 Thomson, Brian & Gordon, Michael. Cases and Materials on Constitutional and Administrative Law. 12th ed. Oxford: Oxford University Press, 2017