“I don’t feel totally free to express myself any more“

27 janvier 2015

27 janvier 2015, 16:35

Commentaire(s)

16:35

Commentaire(s)

Par

Touria Prayag

Partager cet article

“I don’t feel totally free to express myself any more“

Weekly speaks to Urmila Boolell, head chambers at Banymandhub Boolell Chambers, about the state of the legal system in Mauritius, unscrupulous lawyers and her evaluation of the political situation in the country.

■ Bar Council for one year, what is your evaluation of the justice system in this country?

The justice system is fine. I am a member of it. But like any system, it needs evaluation. At the end of my mandate, I submitted a report about the state of the profession and what needed to be reviewed.

■ In a nutshell, what needs to be reviewed?

I think the structures we have had for so many years don’t function anymore, including the Bar Council and the application of the code of ethics. The profession has changed so I think we need to review ourselves and look at not what works for lawyers but what the person seeking justice requires. We don’t spend enough time doing that but instead spend a lot of time looking at what suits lawyers.

■ And you particularly spend a lot of time chasing money. Show me the cheque before I hear about the offence…

(Laughs) There’s nothing wrong with that. Any honest way of earning a living is fine. It becomes a problem when we mix issues.

■ What do you mean?

Well, we have so many cases where because of money we are willing to stretch our own values, sense of right and wrong and our ability to be ‘creative’.

■ There are also a lot of problems for the person receiving justice in the sense that the system takes a lot of time, particularly because some lawyers just don’t show up, or sometimes advise their client to be sick, etc. Is there any way of attenuating this perception?

I’ve been around for 30 years. This situation has really worsened. What we have right now is sometimes questionable. It is up to the courts to be firmer and take lawyers to task instead of conveniently acceding to requests.

■ But what can magistrates and judges legally do? If the lawyer says she is sick, she is sick. And some of them seem to be sick whenever it’s convenient.

Well, there is a word of counsel that as far as I know has always been sacred. That doesn’t seem to be the case anymore. I remember when I was chair of the Bar Council, a very senior member of the bar had a problem with one of the senior judges, where the courts were not willing to take the word of counsel at face value anymore.

■ How does the judge decide whether a person is genuinely sick or not?

There are many ways to get around this. There are many cases, especially the big ones, where many counsels appear. I was always trained as a junior in a case and was told ‘look, if I couldn’t take a case for whatever reason, you would have to step in’. Now we have cases where seniors and juniors appear and the junior counsel, sometimes of many years’ standing ask for a postponement because the lead counsel is sick. Why don’t they take the case?

■ Why does the judge have to accept that?

My personal view is that the profession — and that includes everyone — judges, lawyers etc. — has tolerated a lot and now it has crossed the threshold. I mean there has to be some flexibility in everything – I am not saying that they should not be tolerant – but I think where this tolerance impinges on the rights of the litigant, that’s not acceptable.

■ Has there been any follow-up on your suggestions?

No, I have not seen any follow-up on my suggestions. The profession has got bigger. We have practically 700 barristers! When I started, there were about 50! That gives an indication of how stretched the profession is. We have reached a stage where the ethics have gone haywire. I mean I don’t think we have ever had as many reports of ethical breaches as are being reported now.

■ How about the police? Many people have little trust in the police. Do you think that that perception is justified?

To be honest I don’t practise much criminal law. I think the police is an institution like the judiciary. It is supposed to act independently.

■ Does it?

Perceptions get in the way. For the right perceptions to be out there, the right messages have to go out. I am not sure that these messages always go out.

■ Do you share Yousuf Mohamed’s view that there are a lot of ethical issues involved in the Roches-Noires case?

I think it would be wrong for me to comment on this but I can tell you that this whole matter is quite emotionally charged. And where emotions get in, judgment suffers. Anyone emotional about something has an impaired judgment.

■ What is your evaluation of the political situation in general?

I sincerely deplore the lack of intellectual debate in the course of the last campaign. I would say that it began with about 45% undecided voters, and it ended with even more undecided than before, irrespective of the voting patterns.

■ Some political observers are saying that the government has started well, others are saying that there have been just communication stunts and witch-hunts. Where do you stand?

First of all, I respect any government that’s democratically elected, so I won’t start out by saying that everything they are doing is wrong. I will wait and see, depending on what they do. And what I see right now is that there is too much emotion.

■ With regard to what?

You see, if you want to change people in various positions, there’s nothing wrong with that as long as you follow the right procedures. If you want to change political appointees, there’s nothing wrong with that. If you want to change the way that certain institutions function, there’s nothing wrong with that. But if you go about doing it in a way that when every time you open the press, there is a new ejection and it’s meant to be sensational, I think that’s wrong. This undermines the public confidence in our institutions.

■ Any case in particular?

Yes, I can give an example: the case of the Independent Commission Against Corruption (ICAC) where somebody is physically stopped from going into his office and physically removed from there. What is this? As a right-thinking citizen, I would say that’s wrong.

■ Is it legal?

I doubt it. The ICAC is an independent commission, so if there is any reason to challenge its head, who by the way was appointed across the board, it should be done according to the law. If he did something wrong, we have a right to know. Now, by taking one lot out and placing another one in, without telling us what was wrong with the previous lot, you are not acting in our best interest.

■ Their argument is that the previous lot was not independent

I think this has to be supported. I am willing to accept that, if you can support it. You can’t just take it upon yourself to say that they were not independent and get rid of them in a summary way. In some of these koup la tete (cutting the head) changes, it doesn’t appear that all procedures have been followed.

■ Does that include the appointment of the new head of the ICAC?

The law says that the appointment should get the approval of the leader of the opposition and I am not aware that this has been done. The law says that the commission should operate with three people at the helm, I don’t think the other two have been appointed yet. So as a lawyer, I have a problem understanding how the ICAC is operating today.

■ How about the appointment at the Mauritius Broadcasting Corporation (MBC)? Has that resulted in any change in the way it functions?

(Laughs) I am one of the few people who watch the MBC and from what I can tell, there has been no change. I think it’s operating on autopilot. The news is exactly the same – very much dictated by what the ministers do. So basically, it’s still a diary of ministers’ activities.

■ But the ministers are different. Isn’t that change?

(Laughs) Well, it probably is – in the sense that change can be either positive or negative! I think any national television channel has to inform people about what’s going on; it’s not there to promote an individual or a minister. I look forward to the day when real live debates will be broadcast with persons of all political shades.

■ This new government campaigned on a Freedom of Information Act. Is it likely to come and will it lead to change?

If it comes, it would definitely lead to change. There is a lot that’s shrouded in opacity and we don’t know what’s happening. If this information was available, there would be transparency and that’s helpful. I question whether any government when it is in power, as opposed to when it is in opposition, is willing to let people know what is happening behind closed doors. So, I am keenly awaiting that.

■ There was talk during the electoral campaign of a Declaration of Assets Act. If it did come into practice, what do you think the outcome would be?

I will reply by telling you about something I read recently. The former UK prime minister, Tony Blair, is being taken to task by the UK parliament to explain the source and extent of his assets. He is not in office right now but, through his consulting activities for all these foreign governments and international firms, he is drawing sizeable fees.

Transparency isn’t just for when you are in office. I have heard a lot being said by this government about cleaning all these things which happened in the past 10 years, but why are we stopping at 10 years? If we really mean business, let’s go back 20 years! In terms of grave digging, if it means a healthier environment and a clean slate then I’m all in favour of it. But let’s not stop at 10 years unless you want to make it look like a witch-hunt. Stopping it at 10 years means you are sending the message that all this has only been going on for the past 10 years. I defy anybody to tell me that all abuse, excesses and cronyism have only happened in the last 10 years!

■ Does the state of the opposition worry you?

No. There is a lot of critical thinking going on but I don’t think enough time is being spent listening to those people. They are not the people who speak on independent radios! These right-thinking people are the intellectuals and we have a rich pool of them in Mauritius. Unfortunately, they have been muzzled. There is a climate of terror. Honestly, I don’t feel totally free to express myself any more. And neither do the people around me. If you ask somebody who they voted for at the last election, very few would actually be willing to tell you that they voted for the opposition. What does that indicate? There is a job or a contract to lose… I think that’s a shame! In a healthy democracy, people must be free to say things constructively without fear. And I can say that lots of people right now cannot do that.

■ Showkutally Soodhun has been found guilty of taking part in an illegal “gathering without notice to the Commissioner of Police” in breach of the provisions of the Public Gathering Act and for having made insults. Are you free to say anything about that?

It is premature to answer this question as the case remains sub judice until the sentence has been pronounced. All I can say now is that these offences carry sentences ranging from fines to imprisonment. We need to wait to see how things pan out.

■ Coming back to the opposition, do you think it’s going to rise to the occasion or are we going to go through a phase where no dissenting voice is heard?

We are in this phase right now! I can’t speak for the MMM but the Labour Party is an old party. I remember in 1985 when my father-in-law was leader of the party and the same people were saying that the Labour Party was ‘in the poubelle de l’histoire (the dustbin of history)’. It came back and it remained in power for a number of years. Opportunity comes in adversity and the Labour Party will have to use its recent defeat as an opportunity to rise again.