20 Dec 2011

Heigh Ho, Max … Mazin rides again

Mazin back in the news…

He is suing the President for firing his arse from the Police Service Commission (he was replaced by lime-lighter Deosaran).

First, we should realise why Mazin was fired. Not only did he shame the Commission and the country (note, not himself eh) when he got tangled with two police officers carrying out their duties and then pulled rank on them, he then claimed it was his job to correct the ethnic imbalance in the police service.

Now the first incident could have been forgiven, and indeed appeared to have been. The second was  not exactly as outrageous or as openly confrontational as the first, but was more insidious in my opinion. As I stated at the time:

Mazin's statement that he was there in the Police Service Commission to correct the imbalance is totally incorrect. Morally and legally that was not his role. His position is now untenable given his openly stated views. From now on if he remains, when any Indian officer is promoted, one would have to wonder whether that officer was promoted on the basis of merit or "to correct the ethnic imbalance". Mazin has therefore put the entire Public Service Commission in a position of distrust and doubt. The government has now been left with no choice - Mazin has to go!

Mazin now claims that “he expressly stated to the JSC that he did not advocate affirmative action, but meritocracy.” Nothing presented so far supports that claim.

The Express reports that:

…(Richards) had consulted with the Prime Minister and Leader of the Opposition, and had received two letters from three members of the PSC, complaining about his chairmanship.

Mohammed claims he was told by President Richards that the reference to ethnic imbalance in the Police Service at the highest rank was outside the remit of the PSC and amounted to "irresponsibility".

Mohammed also stated, in court documents, he was told by the President that the complaints of the three members of the PSC meant that, in failing to hold the membership of the Commission together, he was "incompetent" within the meaning of Section 122A(1) (f) of the Constitution

Now, the removal of a Commission member or Chairman need not be on ‘irresponsibility’ or being ‘incompetent’ but (in Section 126.4 the word used is) ‘misbehaviour’. If that wasn’t enough, there is also in the same section the words “any other cause”. By making his comment that he was there to comment on ethnic imbalance, did Mazin ‘misbehave’ in his office? My opinion is that he did, taking onto himself a role that is neither moral nor constitutional.

I also query his claim that he spoke under cover of Parliamentary Privilege. Not being a member of Parliament, and the forum being a Joint Select Committee meeting held in the Parliamentary Chamber but itself not being a session of Parliament, does that qualify him to claim Parliamentary Privilege? Seems dodgy at best.

Still the legal ramifications of this case is fascinating.

One one hand, the Office of President is insulated against legal action as written in the Constitution, specifically Sections 80.1(a) which authorises him “(in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except in cases where other provision is made by this Constitution or such other law, and, without prejudice to the generality of this exception, in cases where by this Constitution or such other law he is required to act- :

a) to act at his discretion”, and

Section 80.2 which states “Where by this Constitution the President is required to act in accordance with the advice of, or after consultation with, any person or authority, the question whether he has in any case so acted shall not be enquired into in any court.

There also remains the fact that 3 members of the Commission wrote to the President withdrawing their support of Mazin. Since this represents the majority of 5 members, Mazin cannot now claim to command the majority required to perform as Chairman.

Section 38.- 1. Subject to section 36, the President shall not be answerable to any court for the performance of the functions of his office or for any act done by him in the performance of those functions.

Mazin claims “Section 38 (1) does not preclude the court from enquiring whether the President exercised his power of termination in contravention of Mohammed's right to due process and procedural fairness.”

This is where things get unclear. Can the Court enquire into the President’s conduct and action via a ‘backdoor’? Will this go to the Privy Council?

There are a lot more reasons other than Section 38.1 why Mazin had to go. However, a review of Section 38.1 might see me in London at the Privy Council… again.