Kwang Poon
Background
According to late Joseph Tsang Mang Kin [1], the erosion of our democracy and loss of the independence of certain public offices stem from Amendment 2 of 1982 (A2/82) which altered Section 113 of the Constitution (CS113) governing the ‘Appointment to Certain (Public) Offices’.
It is worth highlighting that A2/82 was rammed through and enacted within one month of the first euphoric 60-0 in the history of Mauritius with alacrity prevailing over scrutiny.
Dr Jimmy Harmon [2] referred to the downward slide of our institutions and dangerous drift of our democracy as ‘The Ratchet Effect.’
Today, we have ‘a tryst with destiny’ as Mauritius recently came out of the polls on 10 November 2024 with its 3rd unequivocal 60-0 electoral results with ‘lepep admirab’ clamouring for ‘changement’ and with arguably the destiny of our republic at stake.
Original
- It shall be lawful for a suitably qualified person to be appointed (regardless of his age) to hold any office to which this section applies for such term (not being less than four years), as may be specified in the instrument of appointment and the provisions of this Constitution shall have effect on relation to any person so appointed as if he would attain the retiring age applicable to that office on the day on which the specified term expires.
- This section applies to the office of Electoral Commissioner, Director of Public Prosecutions, Chief Justice, Senior Puisne Judge, Puisne Judge, Commissioner of Police or Director of Audit.
Amended (Amendment 2/82 enacted on 7 July 1982)
- A suitably qualified person may, irrespective of his age, be appointed to hold the office of Electoral Commissioner, Director of Public Prosecutions, Chief Justice, Senior Puisne Judge, Puisne Judge, Commissioner of Police or Director of Audit for such term, not exceeding 4 years as may be specified in the instrument of appointment and this Constitution shall have effect in relation to any person so appointed as if he would attain the retiring age applicable to that office on the day on which the specified term expires.
- Notwithstanding any provision to the contrary in this Constitution, but subject to subsection (3), an appointment made under section 87 or 89(3)(h) shall be for such term as may be specified in the instrument of appointment.
- An appointment to which subsection (2) applies –
(a) subject to paragraph (b), shall terminate at the expiry of the term specified in the instrument of appointment;
(b) may be terminated at any time after a general election held after the appointment.
Repercussions
The crux of the matter lies in the subtle, yet far-reaching, change in the term in office whereby the words “not being less than four years” were surreptitiously substituted by “not exceeding 4 years”.
By losing the security of tenure, the office holder became potentially susceptible to the exactions from the ruling party.
As an extreme case of how the Sword of Damocles could hang over the head Commissioner of Police (CP), the contract of the CP can be renewed on a month-to-month basis subject to the ‘whims and fancies’ of the government of the day.
Proposals
Therefore, any amendment to the Constitution should move in the direction of reinforcing the sacrosanct principles of separation of powers, strengthening checks and balances, and bolstering the independence of key institutions in order to be free from undue political interference.
However, there exist two schools of thought on this matter: one believes that ‘the person makes the institution’ while the other believes ‘the institution makes the person’. At the end of the day, if the person is amoral, s/he will find a loophole and take advantage of it. If the person has integrity and high moral standards, then even s/he will uphold the belief that ‘not everything that is legal is moral.’
It is perhaps worth recalling Mahatma Gandhi’s ideology which is based on Satyagraha (Truth) and Sarvodaya (Welfare for All). As a matter of fact, Gandhi [3] heeded and promoted the warning regarding the Seven Social Sins first put forward by Frederick Lewis Donaldson. Later, Gandhi’s grandson Arun expanded on the list and came up with the Seven Blunders of the World Plus Five.
With regards to meritocracy, Mauritius might well take inspiration from Singapore which has enshrined this principle in the conduct of government business. ‘Putting the right person at the right place’ entails a comprehensive system and work culture which key public institutions in Singapore try to adopt.
Singapore has developed a comprehensive talent development programme from fair selection, conscientious identification of top performers, meticulous grooming of high flyers, and judicious succession planning.
REFERENCES
[1] Tsang Mang Kin, Joseph. Les malheurs des 60-0 et le projet ‘Fair-Play’. Collection Radical 2022.
[2] Harmon, Jimmy. General Election Results, 11 June 1982 : ‘60-Zero’: Song of Victory, New Insights & Ratchet Effect. Le Mauricien du 6 juin 2023.
[3] Seven Social Sins.’Young India’ Newspaper of 22 October 1925.