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[Paul Lismore] L'ETAT DE DROIT: THE NEED FOR LEADERS WITH A BETTER UNDERSTANDING OF THE RULE OF LAW


Rédigé par Paul Lismore le Jeudi 6 Février 2020

Our politicians never miss any opportunity to remind us that we live in a l'Etat de droit, and we are supposed to be grateful that those whom we select to represent us every five years have such an immutable and ironclad grasp of the difference between legality and criminality. If only life was that simple….




It is never advisable to adopt a lifestyle that is too rigid and therefore impervious to change; but there are quite a few useful rules of thumb that never go wrong if you strictly adhere to them.

For example, if a film is mortifyingly boring after the first half hour, it is highly unlikely that the rest of it will wake you up and make you jump out of your seat; if a treter tells you that the offer of a goat (black, if you don't mind..), and a lot of money to the Gods (i.e. to himself) will bring you good luck and remove all the 'evil spells' against you, you know that he is trying to con you into replenishing both his larder and his bank account; if something is too good to be true, like these numerous tuyaux apparently straight from the horses' mouth regarding the winner of the next race at Champ-de Mars, the end of the race will almost certainly prove that it was indeed too good to be true; and if a politician tells us that he is serein whenever allegations of corruption are made against him, the chances are that the idiot is indeed corrupt, notwithstanding the fact that he will be found innocent in our so called l'Etat de Droit, or no actions whatsoever will be taken against him.

 
Lord Bingham, the senior Law Lord, defined the core of the Rule of Law as "all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts".

Lord Bingham identified eight corollaries to this definition, all of which he relates to John Locke's dictum that "Where-ever law ends, tyranny begins" and to Thomas Paine's declaration that "in free countries, the law ought to be King; and there ought to be no other".

The eight corollaries are:

1/ the law must be accessible and intelligible;

2/disputes must be resolved by application of the law rather than exercise of discretion;

3/ the law must apply equally to all;

4/ it must protect fundamental human rights;

5/disputes should be resolved without prohibitive cost or inordinate delay;  

6/public officials must use power reasonably and not exceed their powers;

7/ the system for resolving differences must be fair.

8/ finally, a state must comply with its international law obligations.

Above all, Lord Bingham argued that there is the fundamental requirement of the government not to exceed its legal powers, which means that there are occasions when judges will rule against ministers. But as he observes, "There are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live."

A cursory examination of the way all governments have behaved in Paradise Island since independence leads to the inescapable conclusion that we are very far from the l'Etat de Droit that politicians like to enthuse about whenever they want to score cheap political points over their opponents.

Our politicians appear to have never heard of the opening words of the founding charter of the Constitution of the United States of America which endorse the notion that "All men are created equal and endowed by their Creator with certain inalienable rights...and that Governments are instituted among Men and derive their just powers from the consent of the governed."

Let us look at the application of each of the components of the Rule of Law in Mauritius and decide whether the concept of l'Etat de Droit is a reality or a sick joke.

 
THE LAW MUST BE ACCESSIBLE AND INTELLIGIBLE:

A significant proportion of our population can hardly read or write and do not have the resources to instruct solicitors. The law is accessible provided you have a lot of money, an infinite amount of patience to endure the long years of waiting before a case is finally settled, and almost supernatural powers to understand the convoluted legal jargons that are designed specifically for members of the legal profession to impress each other.

DISPUTES MUST BE RESOLVED BY APPLICATION OF THE LAW RATHER THAN EXERCISE OF DISCRETION:

Politicians have their grubby paws on almost every lever of our society and a democracy has been turned into an executive dictatorship irrespective of which party is in power. The Prime Minister's powers of patronage and the bullying tendencies of most of our politicians have ensured that discretion is exercised often wrongly and almost entirely for party political purposes by a Civil Service cowed into submission by threats to future promotion prospects.

THE LAW MUST APPLY EQUALLY TO ALL: don't make me laugh! If you are rich and powerful, you can always claim to be ill and therefore escape the due processes of the law a la Harry Tirvengadum; or you can simply tell the police officer trying to arrest you: To koner moi kisan la?; Or you could be arrested with thousands of subutex tablets and be charged with possession only and not intent to supply, presumably because you planned to consume all of them yourself or, in the spirit of enterprise apparently flowing everywhere in Paradise Island, you planned to get a Government Fund grant in order to turn the tablets into nice collar chains to be sold to the two millions of tourists we expect in less than ten years time…Or the police or ICAC could take years to 'etidier dossiers la', as in the Sumputh and Choomka cases...

IT MUST PROTECT FUNDAMENTAL HUMAN RIGHTS:

In Paradise Island, it would seem that the Human Rights of criminals are far more important than the human rights of victims. It does not matter how serious the crime is, there is an excellent chance that our wonderful magistrates will release you on bail soon after arrest. If you are a victim of a road accident, the driver will be released soon after arrest and allowed to drive again, whilst the rights of the victims will be ignored for years by the courts and the insurance companies.

 Other people, like Rajesh Ramlogun, Kaya, Iqbal Toofany etc, are invited by the police for a chat and end up dead, presumably because, if we are to believe the version of the police, of a sudden desire to test the strength of the cell walls with their heads

Teeren Appasamy must have his right to remain in the United Kingdom protected at all costs presumably because it would be unfair to expect him to spend the hundreds of millions of rupees siphoned from the Pensions Fund in the MCB in such a small place as Paradise Island…

DISPUTES SHOULD BE RESOLVED WITHOUT PROHIBITIVE COST OR INORDINATE DELAY:

Does an average wait of five years to settle a case in court sound attractive to you? As for the cost, I do not believe the general perception that lawyers' costs are exorbitant; they must be very poorly paid as very many of them do not think it worthwhile completing their tax returns or giving receipts for the work they claim to have done on your behalf…

PUBLIC OFFICIALS MUST USE POWER REASONABLY AND MUST NOT EXCEED THEIR POWERS:

Read the recent interviews of Anooj Ramsurrun ("Je suis Pravine") and Veeramundar, 2 top people at our MBC, as clear examples of the absolute need for Mauritius to invest in an aero spatial industry in order to bring these two grossly overpaid, pompous, puffed up, narrow minded individuals back to Planet Earth.

THE SYSTEM FOR RESOLVING DIFFERENCES MUST BE FAIR:

How on earth can you do that when everything is subject to political interference? Compare the Lewis Hamilton like rapidity in dealing with a voleur leksi at Marionette's house to the snail pace of the Supreme Court when dealing with an issue that affects all of us: Were the last elections free and fair or were they stolen?

A STATE MUST COMPLY WITH ITS INTERNATIONAL LAW OBLIGATIONS:

Go and visit the living quarters and work conditions of the foreign workers that we have invited to come here, and then decide whether they meet with the minimum international standards.

 
L'Etat de Droit remains a figment of the very fertile imagination of our politicians. From the chauffeur driven limousines that politicians cannot wait to take for themselves with our money, including personalised licence plates; from the 100% control of per diem by the Prime Minister for missions which he himself authorises; from the powerlessness of the police and customs officers to arrest the major drugs dealers because of their political connections to the large number of street dealers and addicts arrested; from the hard working, decent folk in parastatal bodies who know that no amount of hard work will prevent a minister's friend or close relative getting the job that should reward his efforts to the numerous civil servants who suddenly find incompetent, ill educated advisors acting as their line managers; from the iniquity of letting bungalow owners on our pas geometriques deny us access to our seashore to the incredibly careless generosity of asking hotels and restaurants in the same exclusive zones to pay us a pittance annually whilst making massive profits on state, i.e. our, land. All these, and many other examples, point to the desecration by our politicians of the noble concept of l'Etat de Droit.

 
Our democracy is fine in principle; we have elections every five years and apart from the last elections, the electoral process runs fairly smoothly. But we always end up with an elective dictatorship where the winner takes all and the new Prime Minister does as he wishes with the enormous powers of patronage that we have allowed him to enjoy.

He can hire and fire at will and does so with the child like fascination of the power experienced by a kid with lots of loose change on his first trip to the sweet shop. It does not matter whether it is Ramgoolam, Berenger, or Jugnauth who is Prime Minister; they have all abused the powers of that office in a manner bordering on the criminal.

 
The latest example of this gross abuse of power is the pilfering of our money from the Bank of Mauritius in order to repay some of the huge debts politicians have incurred on our behalf.

The Board of the Bank of Mauritius is apparently in a serious race with Nobin to decide who should have the mantle of "Marionette' thrown over their shoulders... the manner of selection of the next Governor of the Bank of Mauritius will ensure that all the short listed candidates will have very close links to the MSM party, same as during a PTr government, only candidates showing allegiance to that party were selected.

A serious selection of candidates would have invited applications from the many other Mauritians who are better qualified, but who have enough self respect not to kneel in front of political leaders and do what comes naturally to those creatures. But what can you expect when Ali Mansoor was presented as the bees' knees of the World Bank by his friend Sithanen when in reality he was at best a middle manager from that organization?

L'Etat de Droit? It will only happen in Paradise Island when our politicians understand exactly what the Rule of Law means. And that is a very long time away.

Jeudi 6 Février 2020

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