The recent appointment of the former judge and ex-chairman of the Permanent Arbitration Tribunal, Harish Balgobin, as chairman of the Independent Broadcasting Authority by Sir Anerood Jugnauth, president of the Republic, could have provoked yet another serious political and constitutional row on the ?appointment? powers of the president to certain key posts under our system of Government and Politics. The appointment was made, it would be recalled, contrary to the recommendation of the Prime Minister and of the Cabinet. The Cabinet proposed the name of Mr J Beeharry instead.

In an article, related to the powers of the President of the Republic, under the Prevention of the Corruption Act (Vide L?Express of 8 August 2005), it was argued that the President of the Republic of Mauritius is a constitutional Head of State. It follows, therefore, that in the exercise of his powers under the Constitution or under any other law, he is bound to act in accordance with the advice of the Prime Minister and of the Cabinet except in cases where the Constitution itself expressly grants the President the power to act in his own deliberate judgment after consultation with any person or authority.

■ <B>Constitutional provisions for PSC</B>

One important case which falls under the latter category ? where the President is empowered to appoint in his own deliberate judgment ? concerns the appointment of the chairperson, deputy chairperson and commissioners of the Public and Disciplined Forces Service Commissions (PDFSC), after consultation with the Prime minister and the leader of the opposition (Section 88 of the Constitution). The furore that was caused over the appointment, soon after the new government was elected to office in July 2005, by the president of the republic of the chairperson and commissioners of the PDFSC is still fresh in our memory. Contrary to established practices but in conformity with the Constitution the President did not abide by the recommendations of the Prime minister in the appointment of the chairperson, deputy chairperson and of the commissioners. The Prime minister was infuriated. By what right can a president chosen by the previous Government frustrate the wishes of the newly elected government? He appeared determined to cut the Gordian knot regarding the removal of the President from office.

■ <B>No constitutional provisions: appointment of IBA chairperson</B>

Now that the dust has only just settled over the controversy, it would appear that the president has done it again and this time over the appointment of the chairperson of the Independent Broadcasting Authority (IBA). However in the case of IBA there are no constitutional provisions regarding the appointment of the chairperson. The IBA is not even a constitutional authority. It has been set up by the IBA Act, an ordinary legislation, which confers, erroneously, in my opinion, on the president the power to appoint its chairperson. In fact section 6(a) of the IBA Act (Act No. 29 of 2000) states that the authority shall consist of ?a chairperson who shall be appointed by the president after consultation with the Prime minister and the leader of the opposition?.

The stand of the president, that is, the bypassing of the recommendation of the Prime minister and the cabinet is reinforced by the provisions of section 7 of the Act which lays down that any member is disqualified if he happens to be an office bearer of a political party or political organization or if he becomes a member of a political party or is actively engaged in politics. Thus anyone who is actively engaged in politics is disqualified and thus ineligible for appointment. The cabinet recommendation to the effect that Mr Joydeep Beeharry, an active member of the Labour Party, was to be appointed chairperson of the IBA could run counter to the Act. To my mind the president?s action should have been confined to drawing the attention of the Prime Minister to the fact that Mr Beeharry was ineligible and leaving it to the Prime inister to choose, after consultation with the cabinet, another person.

It would appear that the president did not merely point out that Mr Beeharry was unsuitable but went further and used the powers conferred upon him by Section 6 to appoint Mr Balgobin as chaiperson of the IBA. As it turned out, the name of Mr Balgobin, by a strange coincidence and a stroke of luck, was acceptable to the Prime minister. However, one can still argue as a matter of constitutional propriety, whether the president could really do what he did the provisions of the law notwithstanding. Should not the president have realized that he was bound to act in accordance with the advice of the Prime minister as per the provisions of section 64(1) of the constitution?

■ <B>President must act in accordance with prime minister?s advice</B>

It must be spelt out very clearly that Mauritius is a Westminster-based Parliamentary Democracy. Under this system of government and politics the president is a constitutional Head of State. He does not exercise any substantial power except, of course, powers of appointments of constitutional office holders which are conferred expressly upon him by the constitution. In the exercise of powers, not expressly conferred upon him under the constitution, he is bound to act in accordance with the advice of the cabinet or of the Prime minister or of a minister acting under the authority of the cabinet. This is made very abundantly clear in Section 64(1) of the constitution: ?In the exercise of his functions under this Constitution or any other law, the president shall act in accordance with the advice of the cabinet or of a minister acting under the general authority of the cabinet except in cases where he is required by this constitution to act in accordance with the advice of, or after consultation with any person or authority other than the cabinet or ?in his own deliberate judgment.?

■ <B>An ordinary legislation cannot vest additional powers in the president</B>

Thus it is clear that even if any law passed after independence ?erroneously? invests the president of the republic with certain powers, he cannot exercise these powers except in accordance with the advice of the cabinet or of the Prime minister acting under the general authority of the cabinet. Under the Westminster model the president has no power except as explicitly laid down by the constitution. An ordinary legislation cannot confer any power more than the constitution itself invests on the president of the republic. Any additional power can only be granted to the president through a constitutional amendment passed in the prescribed form. The IBA is an ordinary legislation passed with a simple parliamentary majority as opposed to a constituent legislation, one amending the constitution, which requires a prescribed majority of three-quarter. This clause of the IBA which gives the power of the appointment of the chairperson of the authority to the president of the republic, after consultation with the Prime minister and the leader of the opposition, is to my mind, contrary to the constitution. I, therefore, hold that the advice of the Prime minister over the appointment of the chairperson of the authority is binding on the president.

It must be conceded, however that the IBA Act, as it stands, that is, investing the president with the power to appoint its chairperson is presumed to be constitutional. Further the IBA Act forms part of the law of the land. The president of the republic, whose oath of office is ?to preserve, protect and defend the constitution and the law? of Mauritius has no alternative but to exercise the powers granted to him by the IBA Act so long as that particular clause has not been declared unconstitutional.

■ <B>Statute book littered with ?unconstitutional? legislations</B>

Unfortunately our statute book is littered with such ?unconstitutional? legislations passed in the post independence period. One can name a few of them ? Town and Country Planning Act, the Prevention of Corruption Act until recently amended, the Local Government Act etc etc etc? One can quite understand the passing of such legislations before March 1968 when the Governor still exercised the executive power for the Government of Mauritius. But one cannot understand why certain legislations passed after March 1968 confer powers on the Governor General/ President of the Republic, when the Head of State has, after Independence become a constitutional head, divested of all his powers except what are expressly conferred upon him by the Constitution itself.

A test case probably needs to be brought to the Supreme Court challenging the constitutionality of such Acts (e.g IBA Act) on the ground that they invest powers on the president, which have not been granted by the constitution itself.

<B>Raj MATHUR</B>