accountability

Open letter to the President of the Republic of Mauritius

Dear Madam President

How proud you must be as the head of state of an internationally acclaimed, stable democracy. Yet every democracy, including ours, needs safeguarding. That’s why, in your Presidential oath, you swore to “preserve, protect and defend the Constitution and devote yourself to the service and well being of the people”. There are many ways that democracy can be undermined, but perhaps the most insidious is the threat posed by a drift in the interpretation of the Constitution away from the original intent of its authors.

An obvious example is the United States, where those who lead “big business” have increased their influence over elections and law-makers through unrestrained political donations and well-financed lobbying. In Mauritius, it is almost impossible to determine the influence of our own “big families”, amongst others, since political party funding remains stubbornly opaque. That’s why, in 2010, I asked the Supreme Court to bar political parties from the elections unless they made their accounts public. To my astonishment, the Judge ignored my supporting arguments and sought my prosecution for what he interpreted as a display of displeasure, but which I excused as a digestive dysfunction.

Accountability and equality

According to the highest court of our land, the Judicial Committee (of the Privy Council), the most fundamental line of our Constitution is the first one, declaring Mauritius to be a sovereign, democratic State. Therefore, any practice, law or interpretation of the Constitution that fails the test of fundamental democratic principles should be cast aside – the Constitution itself demands this. Perhaps the most important of these principles is that those who administer the State on our behalf should, without exception, be accountable, albeit indirectly, to the people. Another is that everyone, even members of political dynasties, is equal in the eyes of the law.

These principles are generally well upheld in Mauritius: unpopular governments face votes of no confidence, tarnished ministers are forced to resign and under-performing legislators risk not being re-elected. The judiciary is somewhat exceptional in that it is required to be independent. Hence, no person who might have an interest in a judgement can ever have any influence on a judge’s tenure. However, magistrates and judges must make reasoned explanations for their decisions available to the public. In addition, as President, you are obliged to refer a Judge of the Supreme Court, including the Chief Justice, to the Judicial Committee on the recommendation of a tribunal that you have established.

An unhealthy alliance

However, a problem has arisen involving another servant of the State, whose independence is also sacrosanct: the Director of Public Prosecutions. It could be perceived that an unhealthy alliance has arisen between him and the judiciary. On the one hand, he has exhibited over zealousness in prosecuting those who criticise the judiciary. An obvious example was a newspaper editor who published certain letters of a former lawyer. I wrote to both the DPP and your predecessor criticising this infringement of the freedom of the press. The editor was convicted by the Supreme Court but exonerated by the Judicial Committee which disagreed with the former’s judgement and criticised it for not granting him a fair trial and for preventing him making a submission to mitigate the sentence.

In the same way that the DPP seems to protect the judiciary, so there is the appearance that the judiciary protects the DPP. Most recently, in seeking to avoid arrest, he was given access to “justice” that is far beyond what is available to an ordinary citizen. In 1990, the Supreme Court ruled that it would not entertain a claim against the DPP for malicious prosecution, but conceded that his decisions are amenable to judicial review (provided that a case is brought within three months). It added that only in limited circumstances would the Courts prevent a trial from getting under way, such as when “the prosecutor is actuated by malice and nothing else”. Obviously this is next to impossible to prove.

Personal experience

In 2013, I was arrested for paying the court fine of an elderly gentleman to save him from going to jail, something that I believe is lawful in every other country in the world. He made a complaint on the mistaken belief that this prevented him from pursuing an appeal. I was provisionally charged with “making a false acknowledgement”, a very serious offence, carrying a maximum sentence of 10 years. After being informed that the DPP had advised the prosecution, I sought the charge in writing. It was provided to me six months later – far too late for a judicial review.

On the day of my trial, under oath, the complainant accused the DPP of victimising me, confirming my own suspicions. Subsequently the DPP withdrew the case but was not forced to refute the accusation. My only course of redress was to request that the Judicial and Legal Service Commission, whose Chairman is the Chief Justice, establish a tribunal to investigate the matter. I have written to him on two occasions listing the numerous motives that the DPP might have had to maliciously prosecute me and detailing various anomalies in the prosecution process. These include ignoring an email from the Judicial Committee confirming that payment of the fine did not prevent an appeal and ignoring my request that the contents of my phone be inspected by the police. I have received no response.

In the absence of any explanation to the contrary, a reasonable person might well conclude that the judiciary is indeed protecting the DPP. Therefore, I appeal to you as President to prevail upon the Chief Justice to respond to my letters and, if he refuses, to consider whether this constitutes misbehaviour and appoint a tribunal accordingly. The principle of accountability to the people and hence the integrity of our democracy depends on it.

[This letter was published in le Mauricien]

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