Weekly brings the debate back to the legal and moral aspects of the power handover by Anerood Jugnauth to his son Pravind, who was sworn in as the new prime minister on Monday. Lawyer Penny Hack does not mince his words about what he perceives as a blatant breach of the constitution. He also takes a dig at the president of the republic, who he believes has never played a credible role.

You are one of the first lawyers to reveal the legal and moral intricacies of this power transition between Anerood Jugnauth and his son. Now that the deal is done and the latter has already acceded to the prime minister’s seat, how has the debate on morality and legality evolved?

I think we have to go back in time, precisely to Saturday when Anerood Jugnauth came on air and declared that he would be resigning. He told us exactly what would happen after his resignation. He announced that his son would be appointed prime minister after he resigns and the new prime minister will then go ahead to appoint his ministers in his new government. This act was in no way done in a democratic way. It was an act of an emperor on the verge of abdicating from his seat so that his heir could inherit it from him. This has nothing to do with democracy.

So the debate has not changed at all according to you?

Actually, we must understand the problem. The real problem is that there is a set of procedures to follow but at no time did the prime minister during his speech indicate what the role of the president would be because once he resigns, it is the president who intervenes to decide what will happen next. What was announced on Saturday had been planned a week or two beforehand by the government and the prime minister. It is impossible for the prime minister to announce something on Saturday and apply it on Monday. I don't think the president had any say in what happened.

But she herself is appointed by the government, so this should come as no surprise, should it?

What I am saying is that the speed at which things happened is intriguing. Jugnauth Senior resigns and everything is prepared in advance, that is the ministers who are going to be appointed and the oath to be taken. The president had no role to play whatsoever. So the perception is that there has been an abuse of the procedure laid down in the constitution, whereby the actual government has decided on behalf of the president herself and gave her no chance to act. From my point of view, this is an abuse of the constitution.

Then what should have been the proper way to do that?

First of all, the prime minister should have resigned. Before he resigns, he can advise the president on what should happen next. Once he resigns, he has to take a step backwards and he has no say in what happens afterward. The president must then decide to appoint an elected member who commands the majority in the house as prime minister.

But she did appoint the new prime minister two days later…

Yes she did. What I am saying is that Jugnauth Senior had not given the president the opportunity to play her role as laid down in the constitution. He announced everything on his own, which should have been the role of the president. Whichever way you interpret the role, she must have her say. It is shocking that between Saturday and Monday, she had nothing to say.

So can we contest this move?

Of course. We can contest this in a court of law. It is clear that the procedures have not been followed and anyone who heard Jugnauth’s speech on Saturday can see that he had already decided what would happen next.

Does that mean that the whole new government is unconstitutional?

The resignation of the prime minister is not, but the appointment of the new prime minister is. And if his appointment is unconstitutional, then anything he does and any decisions he takes as prime minister could be null and void.

Former Minister of Good Governance Roshi Bhadain stated on his Facebook page that the power transition has not been done in accordance with the principles of good governance. It seems you concur with him...

I think Bhadain is a bit tame in his approach. I am talking about a constitutional breach here. Obviously, what we have witnessed so far is against the concept of good governance, but he had a very tame approach to the situation. What I am saying is that the procedures of the constitution have not been respected.

Let’s talk about the morality of this handover, which some people have an issue with. How far do you think the government has gone in ditching morality?

I am not a judge of morality and I would not judge anything regarding the government’s morality. What I would say is that the way things have been done is completely in breach of the constitution of the country.

The former prime minister has more or less the same portfolios and responsibilities in his new role as a mentor minister. Do you find this intriguing?

He has been given the responsibility of home affairs and a few other dossiers. But traditionally, in my opinion, the home affairs division has to be the prime minister's responsibility. Some people say you don't have much work to do in this area but in fact, this is probably one of the most important ministries in terms of national security and defence. We are talking about the security of the state. By not having this responsibility under him, the new prime minister is actually conceding his power.

Could that mean we might have a risk in terms of national security now?

I think the country has become more unstable by the fact that the prime minister does not have the home affairs division under his wings. This has to be part and parcel of the prime minister's responsibilities, which has been traditionally like that since independence.

Talking about the prime minister and his father who was sworn in as a mentor minister on Monday, do you think the ‘mentor minister’ is a legitimate post as we haven’t found that term anywhere in our constitution?

This term does exist in Singapore but let us be clear that Singapore is not a democracy. It is rather a sort of dictatorship. This term and position has no place in our formal government and formal democracy because first of all, from what I have heard, the mentor minister will be in the same building as the prime minister. This would imply that the prime minister, who is supposed to head the government, will himself have someone who will be supervising him. This supervision and interference means that this again goes against the whole concept of democracy.

So what should be the solution? Should the mentor minister have resigned instead?

I think we have to have recourse to legal action and wait for what the Supreme Court has to say. Coming back to the president of the republic, what I can say is that our president has become a very pathetic political creature. She has no say in whatever is going on in the country. The former prime minister came on TV and announced what would happen in a number of days and she had nothing to say about it, while she had an important role to play and the decision should have been hers.

But everyone knows that she was appointed only to endorse the decisions of the government.

That is why I am saying that everything that has happened so far is unconstitutional. Rubber stamp or not, there was a procedure to follow in the constitution and this has not been followed. The prime minister should have resigned and let the president take things forward.

The opposition parties have decided to unite in an effort to force the government to hold a by-election by getting Anerood Jugnauth to resign as member of parliament. Do you think they now have enough strength to put pressure on the government?

It is natural for the opposition to oppose this handover. But we need a few more days to understand how the opposition wants to take things ahead in a concerted way and to know about their real strength. I believe it is a good thing that the opposition has already taken a stance against the deal between Jugnauth Senior and his son.

What are their options?

They can start by taking legal action and hold peaceful protests.

But the government has a comfortable majority in the House. Do you think the opposition will have any influence?

At least the government can't do whatever it wants as it no longer has the three-quarter majority to change the constitution. They can change laws but not the constitution. So anything they do can be contested in court. What is more important is that the opposition must continue to act together.

The new prime minister has kept the finance portfolio. Could that at least help maintain investor confidence, especially at a time when foreign direct investment is on a downward slide?

The first question to be asked is if we had any to begin with. The topic about maintaining investor confidence has some percentage of stupidity as we must ask ourselves what the real level of investor confidence is in this country at this moment. We have very little investor confidence and keeping the ministry with him now defeats the whole point of raising investor confidence. The power transition, has just weakened investor confidence. However, it may not be a bad idea that he kept the finance ministry because he resumed his ministerial duties with this ministry last year and he should know this portfolio better than the others. Unfortunately, he has not applied this principle to the other ministers.

He might be doing something good for himself but he is certainly not doing any good for the other ministers, who had to change their portfolios. When you see things generally, I don't think there is going to be any improvement because the others are going to take time to know their respective ministries. A prime minister is about leadership; it is not only about the ministry of finance. It is about direction and what we have is a prime ministership which has been cut in half.

What do you mean?

We have on the one hand a prime minster who is in charge of finance and we have someone else who is acting as a mentor who has the control over national security. If you cut the prime ministership in half, this will inevitably weaken the leadership. That is the main problem.

Roshi Bhadain is no longer the minister of financial services. Could that mean a new beginning for the sector now?

He has already destroyed half of it. The problem that the financial services sector faces is that it has lost direction and leadership. No one knows which direction the Financial Services Commission is taking as it has no chief executive officer. Not to mention what the government did to the ex-British American Investment group and the Bramer Bank. The sector has suffered a lot. In the meantime, the only thing we can do is wait and see what happens to this sector in the days to come and hope it is not destroyed further.

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