Mr Prime Minister,

The ?Offices? of Minister Bill

( No: XXXII of 2008), an ordinary bill requiring a simple parliamentary majority, which you will present to Parliament with a Certificate of urgency on Friday September 19, is clearly an attempt, according to me, to circumvent the pronouncement of the Supreme Court to the effect that the Constitution (Section 59(1)) provides for the appointment of only one Deputy Prime Minister and accordingly the appointment of three Deputy Prime Ministers is unconstitutional. Passing an ordinary legislation, that is , one which does not amend the Constitution, with a view to creating two posts of Vice Prime Ministers, is a futile and counter productive attempt to legalise an unconstitutionality. No Parliament can legalise unconstitutionalities. Parliament can, if it has the prescribed majority, constitutionalise a decision which has been deemed unconstitutional by the Court by amending the relevant section of the Constitution. Any attempt Mr Prime Minister to bypass the Court?s ruling by giving a different appellation to the two ministers ? Vice Prime Minister in lieu of Deputy Prime Minister ? is doomed to fail as it will not be able to stand the test of constitutionality in the Supreme Court. Such acts are in themselves illegal as they fall short of the exigencies of the Constitution.

Change Of Appellation from Deputy to Vice

In common parlance Deputy Prime Minister is used interchangeably with Vice Prime Minister . In fact the French translation of Deputy Prime Minister used by the local media has always been ?Vice -Premier ministre?. The term Deputy Prime Minister is used to describe the personality who deputises for the Prime Minister whenever the latter cannot perform the functions of his office. The Oxford advanced learner?s dictionary definition of a Deputy is ?a person who is the next important person and who does the person?s job when he is away. Vice, on the other hand, is defined as someone next in rank , somebody able to represent him or to act in his place. Hence the two words Deputy and Vice appear to be synonymous in meaning.There does not seem to be any difference between the two words. In Mauritius the Constitution itself refers to the Deputy Prime Minister? as someone who replaces the Prime Minister whenever he is away. The Constitution also provides for the post of ?Vice President? of the Republic who performs the functions of the office of the President whenever the latter is away or is unable to perform the functions of his office.Thus it is clear that changing the appellation of Deputy Prime Minister into Vice Prime Minister does not materially affect the role and powers of the holder of the post.The meaning of the two words are so close that you yourself Mr Prime minister made a lapsus as reported by l?express newspaper of 17 September, 2008. While referring to the new post of Vice Prime Minister that the bill purports to create, you have been reported to have uttered Dep? Prime Minister.

Pursuant to Section 59 of the Constitution

Further the bill lays down that it is in pursuant of Section 59 of the Constitution that the post of Vice Prime Ministers are being created. Such wordings are appropriate whenever the Constitution lays down that a certain legislation must be passed to implement certain of its provisions. It was never the intention of those who amended the Constitution in 1982 to provide for the post of Deputy Prime Minister to create two additional posts of VPM. Still less was it the intention of the founding fathers of our Constitution to create such posts.On the other hand when the long awaited Equal Opportunity Bill will be presented to the Assembly, it would be perfectly in order to state that it is in pursuant of Section 16 which prohibits any discrimination on grounds of race, religion, colour, gender, political affiliation and locality. However the ?Offices of Minister Bill? cannot, to my mind, make use of wordings that it is in ?pursuant of Section 59 that it is providing two posts of Vice Prime Ministers.

All Bills must be Constitutional

Bills passed by the National Assembly may have to pass the test of constitutionality. Should an aggrieved citizen feel that his constitutional rights have been adversely affected by the passing of a legislation he can seize the Supreme Court for a declaration and for relief. Any citizen of Mauritius can make use of the provisions of sections 17, if he feels that any of his fundamental rights has been contravened or he can make use of Section 83 if he feels that his interests ?other than his fundamental rights? have been adversely affected by the provisions of a law or by a decision of the Government. That person may apply to the Supreme Court for a declaration and for a relief to the prejudice caused. However the Court will only delve into the case and give its ruling whether the decision/law was constitutional or not if it is convinced that that citizen has sufficient relevant interest which has been adversely affected. In Mauritius there is no recognition of public interest litigation.The Court does not normally give a ruling on a disputed constitutional point brought by an individual citizen on behalf of the community. The court would not give its ruling on a constitutional point unless it is convinced that the interests of the plaintiff have been materially affected. Thus to bring a case to Court regarding the constitutionality or otherwise of a law or of a decision, one must show locus standi.

Power Sharing in our Rainbow Nation

It looks as if the ?Offices of Minister Bill? is being presented to give assurances of power sharing to the ethnic groups constituting the Mauritian nation. Thus the constitutional Deputy Prime Minister, and the two other Vice Prime Ministers would belong to different ethnic groups to reassure the minorities that they are all ?on board?. However given the observation of the Supreme Court in the Beeharry case ,rushing in with a law to create two additional Vice Prime Ministers is tantamount to bypassing the pronouncement of the Court. After all such an ordinary law, can be successfully challenged in Court by the Leader of the Opposition or by any MP, as they, probably have the locus standi to contest such legislation. They can claim that their interests are directly affected by having to refer constantly to the two Ministers as Vice Prime Minister and Minister of Finance and Vice Prime Minister and Minister for Tourism several times during the same parliamentary sittings.The Leader of the Opposition can also argue he feels he cannot address a Minister as Vice Prime Minister and Minister of Finance or Tourism as, to his mind, the appellation of Vice Prime Minister offends the constitutional provisions of Section 59 which provides for the appointment of only one DPM. He can, therefore, show that he has sufficient relevant interests and, therefore, the locus standi to apprise the Court of the matter.Under these circumstances I hold that the Court may well find the ?Offices of the Minister Act? to be unconstitutional. Parliament in Mauritius cannot pass a legislation with a simple majority to constitutionalise an unconstitutionality!

Hon Prime Minister, both Xavier Duval and Rama Sithanen had made it very clear, at least, in their public pronouncements, that they are not attached to the title of Deputy Prime Minister. Sithanen said he never asked for any official title rather it was thrust upon him. Duval, on the other hand, has gone on record as saying that he is not attached to the post and has publicly dismissed summarily the Court?s pronouncement with the quick repartee of what?s in a title. Both of them recognized that the important thing is to ?deliver? in their capacity as Ministers . We wonder,therefore, Mr Prime Minister, where is the problem if we merely abide by the Court?s pronouncement rather than passing a law in the Assembly which has a high risk of being declared unconstitutional by the Court.

Appointment of DPM

It is a fact that the appointment of more than one DPM does not date back to July 2005. Under the several governments of Sir Anerood Jugnauth in the 1980s, there were more than one DPM, at times even, four DPM. Thus you are right Mr Prime Minister when you refer to these practices while at the same time implying that if others have done it, why can?t you carry on with the practice. It is a fact that, as pointed out above, that Sir Anerood Jugnauth did appoint more than one DPM. However the matter was not challenged till after the 2005 election when the Court was asked by plaintiff Beeharry to declare the appointment of the three DPM and that of the Attorney General and Minister of Justice and Human Rights as unconstitutional and, therefore, null and void. Although the Beeharry case was dismissed ,the Court did make a pronouncement to the effect that Section 59 of the Constitution provides for only one DPM. The Court also observed that the Attorney General who is not an elected member of the House, cannot have other ministerial portfolios, other than portfolio of Attorney General.Thus so long as the Court did not give an interpretation of Section 59, previous Governments could get away with it by appointing three or four DPM .However as soon as the Court has made a pronouncement, the latter becomes binding on the Authorities. Honourable Prime Minister if it is felt that the only way to provide assurances to the various ethnic groups is by creating three posts of DPM , then you should introduce a Bill to the House to amend the Constitution with the prescribed two ? third majority .However you should not rush with such bill for the time being as it may be interpreted as a lack of respect to the Court?s findings. Nevertheless you can bring such a legislation which would amend the Constitution at a later stage when things have cooled down to a certain extent.

Mr Prime Minister , allow me to offer you a piece of advice ? withdraw the obnoxious and repugnant ?Offices of Minister Bill? and wait for the time when you can convince two MP?s from the Opposition side to support you in your endeavour, and in the process, obtaining the prescribed majority of two third for an amendment to the Constitution. Mr, Prime Minister, I thank you for your attention.

Raj MATHUR