The announcement of the outgoing Prime Minister on Saturday 21 January 2017, came as a shock to Mauritians, albeit the fact that it was expected. But the timing took the Mauritians by surprise, especially the opposition. Yet, we need to analyse such appointment from multiple angles in a non-partisan way as far as possible.

Such an appointment transcends pure constitutional law and calls also for an analysis from an angle of political science, political philosophy and ethics. It is not a monopoly of a few legal practitioners to analyse the situation, but it should also involve political scientists, political philosophers and academic lawyers and even members of the civil society as for example Mr J Bizlall, who has an excellent grasp of constitutional and human rights issues.

The constitutional framework regarding the Prime Minister

Mauritius has inherited the export-model of the Westminster constitution. It is neither the British constitution nor a pure Westminster constitution. Mauritius has a written constitution, unlike the British one which is unwritten

The export model of the Westminster has brought a number of adaptations to suit a few specific ex-colonies, like Mauritius, Trinidad, Tobaggo etc. The Mauritian constitution with its Best-Loser system, constitutionally guaranteed posts, like the Director of Public Prosecution, the Ombudsman, the Commissioner of Police and other mechanisms like protection of minorities in Mauritius etc, is almost a unique species of its own, a sui-generis constitution. So lawyers or politicians, claiming that we have to follow British practices or conventions are not necessarily right.  Professor de Smith, the real architect of the Mauritian constitution, accepts that the Mauritian constitution embodies unique features of constitutionalism in a plural society.

Mauritius does not have a semi-presidential system, but a Prime- Ministerial one, within a parliamentarian regime (le parlementarisme rationalisé _ a high dose of check and balance between parliament and the Executive).

The President, while not a mere figurehead, like the Queen in UK, has a few important specific powers not necessarily executive in nature. I will devote a specific article on the role and powers of the President in the near future.

However, the President, who enjoys almost insignificant legitimacy, being elected by parliament, is outsmarted by the Prime-Minister. On this criterion, the latter is the real and effective head of the Executive. He controls cabinet and he can hire and fire any Minister and he detains the lethal weapon of dissolution. He has real control over the whole of the Executive and a significant control over parliament, as the leader of the House. With a speaker who is not neutral as in the UK, the Prime -Minister of Mauritius assumes even more powers than the Prime-Minister of UK.

A Prime-Minister in UK and even more so in the context of the export- model of the Westminster model has even more powers than the President of the United States. A paradox!  P Pactet, eminent constitutional lawyer/professor qualifies the P.M in a Westminster model as an "elected Monarch". The Mauritian system, coupled with the intrinsic features of export model of the Westminster, the constitutional provisions and extraneous factors, such as, communalism, casteism and subservience of MPs and other Ministers, has perverted the system to put in place a "super-monarch". The Mauritians have to do some serious thinking to change the system and Mr J Bizlall, a non-lawyer, but somebody having a sound knowledge of constitutionalism and democracy, has already done some serious thinking.

Legitimacy of Power

In the Mauritian system, with such enormous powers, the Prime-Minister is elected on the basis of a single constituency. Is it an anachronism? However, such lacunae, is cured by the fact that the Prime-Minister is announced in advance before an election. Since independence, Sir Seewoosagar Ramgoolam, Sir A. Jugnauth, Mr. Bérenger have announced in advance their candidature to be the future Prime-Minister. In a way, the P.M is not only elected in a single constituency, but plebiscited by voters in all the constituencies. A plebiscite is stronger than a mere vote, as people vote also for the charisma and personality of the ‘super-candidate’. So, up to now, all the Prime-Ministers had a broad national legitimacy and supported by indirect and popular sovereingty. The actual Prime-Minister, Hon. Pravind Jugnauth suffers from the critical element of legitimacy of power. What about the constitutionality of his appointment?

Constitutionality of Appointment

S 59 of the constitution of Mauritius provides the procedures regarding the appointment of a Prime Minister. A superficial reading of the section, isolating the first part subsection3 may lead to the conclusion that the President has absolute discretion to appoint anybody in Parliament, commanding a majority to be appointed as Prime-Minister. Subsection 3 reads as follows " The President, acting in his own deliberate judgment, shall appoint as Prime-Minister the member of the Assembly who appears to him but able to command the support of the majority of the members of the Assembly, and shall, acting in accordance with the adice of the Prime-Minister, appoint the Deputy Prime-Minister, the Attorney General and the other Ministers from among". The grammar and syntax and punctuations have to be reckoned with.  A thorough reading of S 59 shows that it deals with a situation after General Election. There is no scenario of what will happen in the middle of a mandate or after resignation of a Prime-Minister. S 60[3] consolidates the view that a Prime-Minister can only become vacant, where he ceases to be a member of the Assembly, otherwise than by reason of a dissolution of Parliament. S 117 of the Constitution provides that any Minister or holder of an office under the Constitution can resign. However, it does not provide for designation of new Prime-Minister. By virtue of the specificity of S 59 & section 60, those two sections would prevail over section 117, by virtue of clear principles of constitutional interpretation and the principle of hierarchy of norms as put forward by Kelsen. So any contrary claim by any jurist, politician, or lawyer that the nomination is constitutional and likewise the contrary view will not be absolute truth.

Legal Vacuum and Constitutional review

It is clear that there is a legal vacuum regarding the appointment of a Prime-Minister in the context of a mid-mandate situation. In the teeth of such legal vacuum, there is no certain legal solution. No Jurist, experienced barrister or political scientist or seasoned politician, actual or past, can claim to have the magic answer.

The solution lies with the Supreme Court and the Judicial Committee of the Privy Council. By virtue of section 83 of the Constitution, any citizen or political group can apply for a constitutional review to challenge to challenge the breach of S 59 and 60 of the Constitution. In light of a legal vacuum, the Supreme Court, the judicial committee of the Privy Council will have recourse to the standard rules of constitutional interpretation. The literal rule will not be followed and will give place to a generous interpretation in cases such as Minister of Home Affairs v/s Fisher 1979, judgment of Lord Wilberforce support such approach.

In case of Pointu v Minister of Education 1995 SCJ 359, the full bench of the Supreme Court held " The better view, according to us  is that a constitution should be interpreted in light of its history, its sources and wherever applicable, pronouncements or provisions similar to our provisions either by national courts or by international institutions"

In principle, if there was a concrete provision giving the solution for a nomination outside the scope following general election, the Supreme Court would be bound by such a section. Under the present circumstances with a legal vacuum, the Supreme Court will have to fall back on S 1 of the constitution which stipulates that "Mauritius shall be a sovereign democratic state, known as the Republic of Mauritius". In the absence of a concrete provision to deal with the present situation, the Supreme Court, may seek guidance from other jurisdictions, especially other commonwealth countries. The Supreme Court has already stated that Mauritius is a "Liberal democracy" with features like, free and fair elections, electoral legitimacy, separation of powers, rule of law etc. If the Supreme Court adopts a purposive approach or "l'approche téléologique", where the Court will look at the totality of the various provisions, namely Sections 59,60,117 and section 1,it will try to appraise the real spirit of the Constitution than relying on isolated sections. So, it would premature to come to the conclusion that the Supreme court would stick to the first part of S 59, while casting aside subsections 1 and 2 and the second part of subsection 3 of section 59.

My objective is not to prove that my analysis is right. The opinions of any jurist, political scientist and even the most seasoned practising barristers are mere legal opinions and legal analysis. It is also possible that the Supreme Court may opt for a partial reading of S 59 and S 117. Those, who master legal philosophy/jurisprudence will know that out of 19 Judges, we can have 19 different interpretations! So, nobody should be pedantic and claim that the Supreme Court will retain a specific solution in a democratic society and we could predict with precision the outcome. It is apposite to refer the matter to the Supreme Court and eventually to the Judicial Committee of the Privy Council. Besides the legal/constitutional imbroglio, the present situation calls for an ethical and philosophical analysis.

Ethics in Politics and Constitutionalism

We know the views of Machiavelli and some local politicians who claim that "moralité pas rempli ventre". I beg to differ.

The situation would have been different if Mr Pravind Jugnauth had been presented as a potential Prime -Minister after the eventual departure of his father, prior to the general election of 2014. Unfortunately, the present context gives politicians a golden opportunity to qualify the present situation as "Deal Papa-Piti" and "Escroquerie Politique". The appointment of
Mr. Bérenger as Prime-Minister was not tainted with such lack of ethical and moral consideration, because his candidature was announced prior to the general elections. Furthermore, such precedent is dangerous. A politician who does not enjoy broad political legitimacy, but having a specific stronghold in a single constituency may push his stooge person in the forefront. After winning the election, he may ask him to step aside. Such manipulation may be dangerous for a small jurisdiction, especially in a multi-racial and multi-cultural context, which may flare up social tensions and threaten peace and harmony, which we have been enjoying over the past 50 years.  Prof De Smith may come from his tomb to recall us about the spirit and rationales of the present constitution.

The claim that the same scenario prevailed in UK or in some other commonwealth countries, does not stand. Théresa May in UK had to face a tough "primary election" at internal level, before her nomination by the Queen. Secondly David Cameron had to step down, after a personal defeat on the Brexit referendum. In UK, Prime-Ministers are not "owners" of their political parties. It is still vivid in our memory how the Iron Lady, Mrs Thatcher was defeated by a non- charismatic J. Major and the same thing happened to Tony Blair who was outsmarted by a non-charismatic Gordon Brown, when the former was still at the pinnacle of his power and fame.  There is an internal and grass-root democracy in political parties in UK which does not exist in Mauritius among most of the political parties in Mauritius.

It is one of the reasons that farsighted people, like Prof. Smith and other experts and other politicians like, Sir Seewoosagar Ramgoolam, Jules Koenig,
B Bissoondoyal, Sir Gaëtan Duval and Sir Aneerood Jugnauth himself have pressed for the specificities of the Mauritian Constitution during the Lancaster House conference in 1965, with special adaptations and guarantees and possibly the inclusion of S 59 and 60.

We should not also assimilate constitution with constitutionalism.  Constitutionalism upholds ideas like, Rule and Law, Separation of powers, free and fair elections, democracy etc.  It is true that our constitution has incorporated most of these principles.  However, sporadic tampering with the constitution may be a recipe for dictorship.  Constitutional changes should be addressed by Commission of specialised jurists, bringing on board the Civil Society.  The people and politicians can depone, but they cannot decide unilaterally.  The 50^th anniversary of the Mauritian Constitution in 2018 is a golden opportunity to think in a holistic manner about positive and progressive changes.  A referendum will then have to sanction the changes.  History can certify that many dictators have used the black letter rules of infamous constitutions to oppress.  The Supreme Court and the President are supposed to be the guardian of the Constitution.

Role of the Supreme Court and the President

There is no doubt that the Supreme Court has proved to be a true guardian of the constitution, with its neutrality independence and impartiality.  Even when it goes wrong, which is human, we have a safety net, with the absolute protection of the Judicial Committee of the Privy Council.  In spite of the good faith of President like Mr C Uteem, K Purryag, Mrs A Gurib-Fakim, they are prisoners of the actual constitutional framework.  Though, they have done well or quite well, they come from the ruling majority.  Theoretically, they are supposed to be guardian of the constitution, but how can they be so, if they are elected by Parliament after being recommended by the leader of the ruling majority?  In a way a President is a super political nominee.  Future amendments of the constitution will have to address such an issue to avoid unnecessary contradictions.

The President is not a mere figure or puppet like the Queen of UK.  He has a few powers and prerogatives of a special nature, where he can act in his own deliberate judgement or after consultation.  Two political parties are alluding to the fact that there could have been a potential breach by the President in the present circumstances.  While not pre-empting the outcome of an eventual constitutional challenge at the level of the Supreme Court, it could have been a good idea for the President to seek a declaration of the Supreme Court.  This could have quelled any accusation against the actual President, who most of the time is doing her work to the best of abilities, within a framework fraught with contradictions.

Conclusion

It is unfortunate that some politicians, political pundits, lawyers and political scientists want to analyse the present situation in a partisan way and want to impose their interpretations. As a law academic, I accept that there are multiple interpretations. Nobody can pretend to have the solution like an oracle.  However, as a civilised nation, we should allow the Supreme Court and the Judicial Committee of the Privy Council to adjudicate on the matter. On the plane of political science and political morality, there is no doubt, that the important constitutional conventions/principle of political legitimacy have been breached. Mr Pravind Jugnauth could have been a less controversial Prime-Minister, had he chosen the path of elections. Though , we should not follow blindly constitutional convention of UK, there is the practice that Government should not come with controversial issues, which have not been mainstreamed in a political manisfesto or presented to voters before elections. Many dictorship regimes have used the constitution, but constitutionalism should prevail over the black letter rules. A system works or collapses on basis of constitutionalism and not on the black letter rules of a constitution.  Democracy and human rights lie in the heart of man, as rightly pointed by the eminent indian lawyer, Mr Palkivalla.

*The article reflects my personal opinion and analysis and not that of University of Mauritius.