Milan Meetarbhan: “Can a government grant facilities to another State and refuse to disclose the agreement to its own people?”

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The political situation this week has been marked by three major events: the Information and Communication Technologies Authority (ICTA) going back on its threat to introduce even more repressive laws that would have placed us lower than even Kazakhstan, the opacity around the Agalega issue is still complete even after the PNQ and the first electoral petitions are being heard in court at last. Milan Meetarbhan, constitutional lawyer and author, accepts to answer our questions in his usual frank, analytical and comprehensive way. 

In a recent paper, you expressed your strong objection to the ‘consultation paper’. Google and Mozilla and other platforms also sounded the alarm bells. What exactly is the situation now?
It would seem that the ICTA is now saying that if there is an agreement with Facebook then there would be no need for the proposed amendments. 

So all is well that ends well?
The problem is that the ICTA keeps reminding everyone that it has no legislative powers and ultimately it is for government and parliament to decide whether the law should be amended or not. Since this is the case, ICTA cannot decide that there is no need for the amendments but it could only have said that it would not now advise government to consider the amendments. On the other hand, the government wants everyone to know that the proposals came from ICTA and that the government had nothing to do with this. How wonderful! At last we have an independent regulator which publishes major legislative proposals on its own without consulting government and which subsequently decides on its own that the amendments are no longer required. Next, the Independent Broadcasting Authority will tell us that government had nothing to do with the suspensions of the licence of TOP FM, the Financial Services Commission will tell us that government had nothing to do with the licence issued to the Angolan and the MBC will tell us that no politician has any say in what it broadcasts. Isn’t that great? We must tell V-Dem and others to review their assessment and put Mauritius back on the list of democratic countries. 

“As investigations into alleged wrongdoings drag on for years and files are not therefore sent to the Director of Public Prosecution’s Office for independent review and action required, scandal-management remains within the control of those appointed by the political executive.”

Does this concern only Facebook?
That’s a good question. Did the ICTA approach Facebook to find an “acceptable solution” to what it perceived as a major problem before it published the proposals and were these proposals made only after the talks failed?  If there is an agreement with Facebook and hence no need to go ahead with the amendments with the proposed new law aimed exclusively at Facebook or was it about other social media platforms as well in which case, what happens in the absence of an agreement with the others?

Was it wise to even propose more ICTA laws as the ICTA Act has just recently been amended and that even now there is a lot of repression of free speech against those in power?
The proposals made by the Mauritian authorities have been met with incredulity and indignation by many across the world. Various organisations fighting for human rights, democracy and good governance from all continents have signed a joint statement condemning these proposals. At one webinar, when somebody said that Mauritius is following in the footsteps of Kazakhstan, an ICT expert from a prestigious institution said “NO, the Mauritius proposals go beyond what Kazakhstan had proposed.” You can imagine how embarrassing it was for any Mauritian hearing this. 

But we can’t be the only country to have proposed regulating social media, can we?
Indeed, but whilst some countries have adopted legislation putting the onus on digital service providers to monitor and take down posts which are offensive, the Mauritius proposal was to set up a state-appointed body to decrypt, archive and recrypt all messages that are not considered by the government nominees as illegal or harmful. Even if these proposals are not enacted into law, we must still ask ourselves what the responsibility of those who made such outrageous proposals is in the first place and who caused so much damage to the country’s reputation. As far as I know, this is the first time that so many institutions have criticised Mauritius for suggesting measures that would constitute violations of human rights, be regressive in terms of greater Internet access and proposing intercepts that could possibly give rise to serious abuse by authorities. We are more used to Mauritius being cited for good governance. 

But at least the ICTA gave in to pressure, didn’t it?
I am convinced that had it not been for pressure from overseas, they might not have walked back on their proposals. We know how indifferent they are to any kind of domestic pressure.

What is the cost of such faux-pas?
An Institute of the Swedish university of Gothenburg which is funded by leading institutions across the world has put Mauritius on the list of countries drifting into autocracy. We are blacklisted by some. We have fingers pointed at us for making preposterous and unprecedented proposals for controlling social media. We expel elected MPs from Parliament at the drop of a hat. We arrest and detain people for causing “annoyance” to others on social media. What next? I read an article recently on Autocracy and Kleptocracy. This sounded so familiar. I share what President Uteem told you in Kitchen Politics about the shock and awe of Mauritians as to what happened during last year’s lockdown. I wondered whether this article could have been written closer to home. As investigations into alleged wrongdoings drag on for years and files are not therefore sent to the Director of Public Prosecution’s Office for independent review and action required, scandal-management remains within the control of those appointed by the political executive.

It seems that now the expelled members of parliament will be able to attend the budget speech and subsequent sessions following a motion by the prime minister. Labour MP Arvind Boolell talks about reason having prevailed. Has it or there are other considerations?
I wish that Dr Boolell was right. I am afraid that he may be overly optimistic. I believe the government took a lot of flak, not only domestically, on this move to suspend three elected MPs until expiry of the term of the present parliament. Though it is the speaker who triggered the process, the motion to suspend and the terms of the motion came from government. The present speaker has been highly controversial but we must not forget that he is a nominee of Pravind Jugnauth though formally elected by the house. Jugnauth has shown his appreciation of the work being done by the speaker in spite of the public indignation by conferring the country’s highest distinction on him in March this year. I believe that the media and the public may at times be misdirecting their outrage. 

But this is not restricted to parliament, is it?
No. Institutions can function differently under different individuals. This is why the choice of individuals to run our institutions is crucial. I believe that some are fully conscious of this and that is why they deliberately make the choices that they make across the board specially at the helm of so-called independent authorities. In one exceptional case, someone known for his competence and integrity had to be appointed to a top position but at the same time a reliable retiree was also appointed in a senior position within the organisation to keep the independent guy in check. 

Isn’t the government also helped in its abuse by a divided opposition? 
Yes, indeed, three parliamentary opposition parties had decided to work together in the face of very serious challenges for the country until Paul Bérenger decided that he was hurt by the statement of a Labour MP. 

“Jugnauth has shown his appreciation of the work being done by the speaker in spite of the public indignation by conferring the country’s highest distinction on him in March this year. I believe that the media and the public may at times be misdirecting their outrage.” 

But he later said that the disagreement was about the leadership of a future alliance…
As far as we know, there had been no talk of an alliance yet. Now, we have been told that there is an alliance called L’Alliance de l’Espoir. Whilst the issue of leadership was a stumbling block for a potential alliance, we now have an actual alliance but we have not yet been told who the leader is. This doesn’t make sense. I watched your conversation with former President Uteem in Kitchen Politics and I must say that his analysis of what happened is exactly what many Mauritians believe. I also believe that President Uteem is right when he says that Dr Boolell’s personality is “consensuelle” and as such he is ideally placed to bring various parliamentary factions together. Xavier Duval has always been a competent minister and he is a competent leader of the opposition but Arvin Boolell is the leader of the largest group in the parliamentary opposition and he is from the party that led the alliance comprising the PMSD at the last elections. I am sure that the split and the subsequent appointment of Xavier as leader of the opposition was not of Xavier’s making. He reluctantly finds himself in this new position. Anyway, the important thing is that in spite of the fact that we do not presently have a working parliamentary democracy, the opposition should still have a voice. 

But it hardly does, does it?
An adviser to government speaking on radio last week as representative of his ministry said that there is no point in having a motion of disallowance as the government has a majority and such motions are a waste of time because any such motion is bound to fail. Since this “adviser” kept speaking in terms of “we” and “us” meaning the MSM, he was reflecting his party’s view of parliamentary democracy. By the way he is not the only adviser speaking openly of partisan politics. This is a new trend of the MSM era governance. The clan and the State are one. 

There is a lot of talk about Agalega being a military base. Jean Claude de l’Estrac says this won’t be ‘without consequences’. What kind of consequences is that likely to cause?
There are two distinct issues here. One is whether Mauritius should grant facilities to a foreign State on any part of its territory. Views may vary on this. The other is that of transparency. Can a government grant facilities to another State and refuse to disclose the agreement to its own people? A government may either lie to its people or be economical with the truth and reveal only parcels of information it chooses to reveal and hide the rest. Whatever the case may be, the Mauritian government has a duty to tell the people, on whose behalf it acts, the whole truth about what takes place on the nation’s territory. 

“At one webinar, when somebody said that Mauritius is following in the footsteps of Kazakhstan, an ICT expert from a prestigious institution said “NO, the Mauritius proposals go beyond what Kazakhstan had proposed.” You can imagine how embarrassing it was for any Mauritian hearing this.” 

Especially after international media have blown the lid on the whole issue…
Yes, and in some cases the sources are quite obvious. Why has our Ministry of Foreign Affairs or the Prime Minister’s Office or our  embassies not deemed it fit to send any rejoinder to those media making serious statements about what’s supposed to be taking place on our territory. To me right now, the main concern is the truth and nothing but the truth. We cannot accept that our government lies to us and the only way we can know whether that’s the case or not is for full disclosure.  

Are we talking about cession of sovereignty as some fear?
The debate about cession of sovereignty is misguided. There may be cession of certain sovereign rights without giving away sovereignty. The government says that’s not the case. The best way to reassure everyone that this is indeed not the case is to make full and frank disclosure. Whatever the merits of the argument justifying the grant of facilities on part of Mauritian territory may be, the people need to know what’s happening. The glaring chasm between what the international media and well-informed think- tanks are saying and what the government is saying is not a healthy situation.  

The first electoral petitions are being debated this week at last. Are we likely to see a denouement while it’s still relevant in your opinion?
The law states that challenges to the outcome of an election must be made within three weeks of the election. This is a difficult task as the losers who are still reeling from their defeat have to gather all the evidence, often from people who are hesitant to testify against a newly elected government. Still, they get their lawyers to file the petitions within the prescribed time limits as there is a very good reason why the law requires prompt action. MPs who may not have been properly elected will become part of the executive and legislative organs of government and will take decisions that will be binding on the country and may affect the lives of many people. Consequently, the expectation is that the courts will determine the challenges not only diligently but also show procedural flexibility given the very serious nature of what is at stake. In the US, the challenges by Trump followers have been heard almost immediately in at least 60 different courts across the country. Nearer to home, in Kenya and Malawi, the courts have acted within a short span of time. It so happens that in both these African countries, judges determined that the elections were not free and fair and should be annulled and new elections held. In Mauritius the cases are not put on a fast track. Elected candidates who have a vested interest in the status quo may have a lot of leeway in ensuring that protracted proceedings postpone any possible unfavourable outcome for as long as possible by using all the tricks in the book. If for some reason, parliament is dissolved earlier than its five-year term, the electoral cases will become academic. But at the pace at which things move under our legal system, this may be the case even if parliament runs its full course.

Most countries have condemned the latest atrocities on the Palestinian people and the US has shown a shift away from its usual stance. Does that augur well for the Palestinian people?
There seems to be a shift in US public opinion and certainly within the Democratic Party, the president’s party, from unconditional support for Israel. The US always talked of Israel’s right to defend itself but not of the rights of Palestinians expelled from their homes and living as refugees for the past 70 years. Israel has military might and receives $3.8 billion from the US every year. The US role is crucial. If Biden can do what Obama couldn’t (though in the last few months of his Presidency, the US abstained on a Security Council resolution condemning Israel and didn’t veto it as usual) that could be his most important legacy in foreign affairs. Mauritius has always supported the Palestinian cause and we voted for admission of Palestine as an observer STATE at the UN in 2012.That was a 138-9 vote which means that a vast majority of UN members already recognise Palestine as a State. The US cannot keep talking of a two-State solution but must make it happen and start acting as an impartial arbiter. 

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