Milan Meetarbhan, constitutional lawyer and former ambassador of Mauritius to the United Nations, speaks to Weekly about the power handover in the country and the weak comparisons with the Westminster model. He suggests that the current government poses a threat to democracy with a growing list of issues that the country has never faced before.

There has been a lot of talk in relation to the constitution and to the passing over of power from the prime minister to his son, Pravind Jugnauth. As a constitutional lawyer, what is your opinion in light of what has been said about this question so far?

From a purely constitutional point of view, there is no doubt that the president can, in case there is a vacancy in the post of prime minister, call on the member of the assembly who commands the majority in the house to form a new government. I believe everybody is clear on this except for one opinion which suggested that the president should call on the deputy prime minister to form the next government.

Isn’t that opinion valid?

There is a distinction between an absence which is temporary and a vacancy in the position. The constitution is clear that if there is an absence, it is the deputy prime minister who takes over. But, in the case of a vacancy, when the prime minister has resigned, or for some other reason is unable to perform his functions anymore, then the president can call on the person who commands the majority in the House.

If this is the Westminster system, where is the problem with Pravind Jugnauth taking over from his father? How is that different from Theresa May taking over from David Cameron in the UK?

I am not aware of any case in the UK where a prime minister has resigned and said that the head of state has got no choice but to appoint his son as prime minister. So the debate is not about the constitutional situation or the Westminster principles. The debate is that the leaders of the alliance  have themselves openly and publicly said that there was an agreement in 2014 for the prime minister to leave office for his son to take over. The first question is whether there was a deliberate concealment from the people of the understanding or agreement between leaders. The second point is that, in a society like ours, where we are used to a minimum of democratic principles in public life, we find ourselves in a situation which looks like a king abdicating in favour of the crown prince.

But that is allowed by the Westminster model, isn’t it?

I am not aware of any precedent in the Westminster model where first there was an agreement that somebody would leave in the course of his mandate but this was not disclosed to the electorate and I am not aware of any case where the prime minister has decided to vacate his office and state publicly that it is his son who should take over.

The argument is that somehow we all expected that this was going to happen...

No, we didn’t! This is not what the people were told before the elections. What they were told was that there would be a second economic miracle – never mind that there wasn’t a first one in the first place – and that the team who was purportedly responsible for the so-called first economic miracle would in fact drive the second one. And people voted on the basis of what they had been told. Then one and a half years down the line, the two members of this so- called miracle team are no longer around and we are being told that there was in fact an agreement that one of them was not going to be there in any case!

Having said that, even if there was an election now, which is what you probably are asking for, don't you think Pravind Jugnauth would win anyway?

If he wins, then he will have a legitimate mandate from the people to govern and nobody would have any quarrel  with that. Here, there is a breach of trust because it is claimed that arrangements had been made between leaders which were not disclosed to the people at that time of the election.

But does this all matter as long as whoever takes over drives the country forward?

First, I think that people don't believe that the country has been moving forward for the last two years and I am not sure that they therefore believe that the same team, policies and practices with a different leader can lead the country forward. If we are told that it will be different policies etc. then this will be an indictment of the leadership we’ve had since December 2014 as it will be an admission of failure.. But, over and above this, I believe that the Mauritian electorate is mature enough to consider that principles do matter and that they deserve more respect in connection with the announced change of leadership. Honestly, from what I hear, many people believe that if they had known that there was going to be this kind of royal abdication in favour of the crown prince, their vote would have been different.

Some people are actually relieved that from now on, there will be only one head of government because up to now, there have been two heads of government who did not agree on a lot of issues, which resulted in conflicts at the head of the state. Aren’t you one of those who think this is a blessing in disguise?

(Laughs) You are assuming that there were only two. I think there is no doubt that, over the last couple of years, we've probably had the most dysfunctional government for as long as anyone  can remember. We’ve also had a number of decisions which have been taken on major  issues which will have long-term damaging consequences for the country.

What kind of decision are we talking about?

Well, I believe that the decisions regarding the termination of certain contracts, the dismantling of a consortium within a couple of days without due regard for clear procedural rules, the decisions regarding treaties, the flip-flops on major policy matters.  Many of these decisions and abuse will have and already have serious consequences, not only for our economic interests and the development of the country, but also in terms of our image and our reputation and they may also have serious consequences in terms of what taxpayers may have to dish out at the end of the day as a result of these decisions.

Wasn’t there abuse in the past?

There may have been, but I think that people now realise that whatever the so-called past abuses might have been, there was no systemic threat to our democratic fabric, to the confidence in the country or our reputation. Now, within a very short period of time, we have in fact been facing all these systemic threats and the consequences have been almost immediate. In terms of investor confidence, which is always a very good barometer of trust and confidence in the system, the record for the past 18 months is dismal.  

What people from outside may say is that at least this government has come and cleaned the country and that comes with a cost. Look at the court cases!

Politicians will be judged on their acts not words. The one question that people ask is: Is the country cleaner today? On the court cases, we all know there has not been any conviction yet! On the contrary, there have been various provisional charges, which have been struck out. If there have been criminal offences, then, by all means, these should be prosecuted and justice should be allowed to follow its course. But, the investigation and prosecution of criminal offences should not be limited to whatever might have taken place before December 2014. People lose trust in the system if it is not credible anymore because of overt partisanship and the perversion of institutions.  

With all that going on, we saw a large turnout at the Labour Party congress. Do you see this as a turning point in the politics in this country?

I believe that the turning point came earlier. But many political observers were in fact surprised that this turning point, as you call it, came as early as it did.

Is it because the electorate has a short memory?

No, I don’t think so. You know, when you have an election, and I am not necessarily talking about Mauritius at the moment, but anywhere in the world, even if a government reneges on its promises and fails to deliver in the months following an election, people don’t want to admit that they got it wrong. So, it takes time for people to be able to take a stand on what has been happening. This is why I said that many observers were surprised that this turning point came so early in the mandate. Even if they did expect that this would happen at some point.

Why did it come so early?

I think because this government was not prepared for office, did not have the people to govern, had more of a political agenda than a policy agenda. They got their priorities wrong, showed total disregard for the rule of law and proper due process and, by their actions, they have caused a lot of reputational damage to the country and as a result, this has had a serious impact on investment and job creation.  People feel more insecure about the future. I think that there has also been a general perception of, what I would call, a weakening of the state.

How was the state weakened?

The fact that you show total disregard for established rules and safeguards and you arrest former high officials and, in some cases, even have them held overnight, weakens the support which a government needs from the bureaucracy to implement its policies. On top of that, we’ve had probably some of the worst cases of nepotism in the history of this country. When meritocracy goes, so does bureaucratic support.

The talk of the town now is the open war between Minister Roshi Bhadain and other members of the government. In this conflict, on which side would you stand? Bhadain, who says he wants to clean up the country quickly, or the many ministers who are saying that he is immature and he is on his own?

I wouldn’t necessarily look upon it in terms of which clan I would support. What I see, as someone who has always been interested in institutions and in how a democracy functions, is that for the first time in our history we’ve had an affidavit sworn by a minister accusing another minister of using KGB tactics. Both ministers are still in office. It’s the first time in our history that we’ve had one minister recently referring to another minister as a sleeping Chihuahua. The first time that we’ve had a communique from the Prime Minister’s Office denying something a serving minister said in an affidavit. The first time we had a communique of cabinet decisions being amended. Both the prime minister and the secretary of cabinet were not even aware. Apparently, one minister instructed the cabinet clerk to do that. The first time that we’ve had a minister reporting the senior advisor of another minister who also happens to be his party leader to the police. The list of firsts seems endless.

So where is this going to lead according to you?

I don’t know where it’s going to lead but I know what the country requires at this point. We need a fresh start. One cannot have a fresh start with the same team of “dysfunctionals”.

Another election when we have just had one?

In 1982, we had a government winning 100 % of the seats and the following year, there was another election because there was a breakdown in government.

Should there be an election tomorrow, which coalitions will face each other?

I’m not in the business of making political predictions but I think that we are at a turning point. People are really fed up with politicians hopping from one bed to another from election to election. The time is ripe for a reconfiguration of the political landscape. I don’t know what the new landscape would be like but there are moments in history where you have all the conditions required for a change. The world has changed. There are so many young people in this country today who are brilliant, who’ve had a lot of exposure to what has happened elsewhere, who do not necessarily have the sort of unconditional party affiliations that previous generations had. Who are far more interested in policy debates than partisan debates. They are craving for change. If they don’t get it from existing players, they are going to look for this from somebody else.

So should we get rid of the present generation of politicians altogether?

I still hope that people with experience, who have been around, will also be able to adapt to the new requirements and take on board the fact that the world has changed and the message and strategy have to be different. The level of the debate also has to go up and young people should be encouraged to come onboard. This is what the bulk of the electorate is expecting.

What if I didn’t share your optimism and put it to you that people will again vote for who is in coalition with who, who is being represented etc. In that scenario, who do you see as going with whom for the next election?

I have no idea what is going to happen. What I do know from experience is that any permutation is possible in Mauritian politics. I also know from experience that some parties attack each other until the eve of nomination day and then come together on nomination day, maybe fighting each other again after elections.

MP Zouberr Joomaye has just left the MMM. Is that a bad sign for the MMM?

Well, unfortunately, it’s not just one member because the MMM caucus in parliament is probably half of what it was at the beginning of this legislature. This can have repercussions in terms of the rapport de forces within parliament

Does that make a difference in terms of the MMM’s standing in the country?

No, I am not sure that this really has any impact on the party’s standing in the country. I think the support that the MMM has in the country is based on different considerations. But it may certainly have an impact on parliamentary reshuffles.

What about new parties like the Mouvement Liberater and the Mouvement Patriotique. Do you see them surviving another election?

(Laughs) Your question is based on the assumption that these are parties.

How do you define a party?

Normally, you have an idea and a cause, people identify with that idea or the cause and then a party emerges out of this. If, just for the sake of convenience, or through sheer opportunism on the eve of an election, you concoct something and claim that so and so is the leader, you do not exactly have a party. At best, I would call an ad hoc party. By definition, ad hoc is for a given point in time.

What about small parties like Lalit?

As someone who is interested in policies and without necessarily being in agreement with these parties at all times, I think to a large extent, these groups have been the conscience of the nation because they, very often, ask the real questions without necessarily having a hidden agenda or trying to promote any vested interest. Conventional, classical parties are not always guided by the same considerations and usually take a stand on anything according to what this could mean in electoral terms, whereas small parties which are not necessarily  electoral players and who are not part of the electoral competition genuinely think about issues and react according to their conscience.

Concerning the Chagos issue, what progress do you think has been made on that front after our prime minister has pleaded our case to the United Nations?

Successive governments have over the years pleaded our case on Chagos at the UN. We have not made progress yet except for the landmark decision in the MPA arbitration case, but we have the possibility of a debate and a resolution seeking an advisory opinion of the International Court of Justice in June 2017. The media reported that the prime minister would be holding talks with President Obama last week. We do not know yet what progress has been made during these talks. But there can be no meaningful talks unless the US is onboard.

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