Several lawyers had already gathered at the office of Antoine Domingue, chairman of the Bar Association on Tuesday. Mails and faxes were coming. There seemed to be a lot of concern about the constitution amendment bill 2015 to be presented in parliament soon for a first reading. Domingue himself was engrossed in research into other jurisdictions. He took the time to explain to us the bill and its implications on the citizens of Mauritius.

The constitution amendment bill 2015 has created a lot of commotion amongst the members of the Bar Association. What exactly are your members concerned about?

Well, when you start making a derogation to property rights, this becomes a big concern.  In this particular case, I was personally quite alarmed by the use of ‘confiscation’ of property on the mere ground that the owner of the property is unable to explain the provenance of the wealth.

Shouldn’t everyone be able to explain the source of their wealth?

Yes, but under the present system of laws, as is the case in other jurisdictions such as Australia, legislation is always geared towards property acquired through criminal activity. This is the case currently under the Asset Recovery Act and that is the case the world over. What is now being sought by changing the constitution is to provide for a civil confiscation on the ground that the holder of any wealth cannot explain or prove its provenance.

Why does this worry you so much?

We are worried because the protection of property rights is enshrined in our constitution. Some persons might be targeted and prosecuted and, following an enquiry, it may be found administratively that they could not explain the provenance of their wealth to the satisfaction of the new ‘administration’. Besides, why the seven years retrospective effect as from 1 January 2009?

What is your hypothesis?

My hypothesis is that some people from the previous regime might be targeted.

When I walked into your office, I overheard some of your members say “it is a dangerous bill in the hands of a dangerous man” and others were saying “It is more dangerous than the second republic.” Aren’t your members blowing this bill out of proportion?

I don’t think so. Their worry, I think, is that it might be used for other purposes. Besides, as you know, Mauritius is a financial centre so some lawyers act as trustees. Therefore, the fear is that tomorrow all sorts of questions may be asked about property which may be held in trust. This may have an effect on the industry.

Is that all?

No, there is more. It is very strange that the rules are going to change not prospectively but retrospectively. Which I find very odd. You cannot have a retrospective law when the citizen may be subjected to a punishment.

Are there already laws which take care of the proceeds of a criminal activity?

Yes, the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA) takes care of that. There has to be an investigation and the onus of proof is on the prosecution. Here, what the government is attempting to do is reverse the onus of proof. So anyone who has wealth acquired on or after 1 January 2009 is presumed to have unexplained wealth and therefore during the seven-year operative period (from January 2009) he might be called upon at any time to explain his wealth. The onus of proof is on the citizen not on the Integrity Reporting Services Agency (IRSA) issuing the notice. If the IRSA, which is an offshoot of the Ministry of Good Governance, is not satisfied with the explanations, your property may be confiscated following a judicial order and you have to pay a fine and serve a 12-month jail sentence if you fail to comply with a notice from the IRSA requiring you to disclose the source of your wealth within 21 days as from the date of the statutory notice.

But a retired judge will hear the case and there are provisions in the law for appeal, aren’t there?

Yes, but the danger is that before the matter goes to the Integrity Reporting Board, you might find yourself in a situation where there is an inscription of ‘privilege’ on your property and it may take years before the case is finally determined either before the Judge in Chambers, the supreme court or else the appellate courts.

Why are some lawyers saying this is worse than the second republic?

Because no one will be safe! Anytime the IRSA may come in and say “Explain to me where you got this table from. How did you acquire it? And where is the receipt? etc” and they may or may not be satisfied with your explanation. You may or may not have the receipts dating back to 2009. The IRSA and IRB staff are, don’t forget, appointed by politicians!

Some people are always worried about the independence of a board with such powers where the chairman is a retired judge appointed by the prime minister and the two assessors are appointed by the minister of good governance. Do you share that worry?

Of course. Because although the law says the members of the board should be independent and impartial, I am bound to observe that any two members appointed by the minister who may not necessarily be legally qualified may find themselves taking a majority decision! Yes, the matter will eventually be decided upon by the judiciary but there is no time frame. That may take years.

Is there the danger that this law may target honest citizens who have nothing to hide and who find themselves in uncertainty for years before the case has been resolved in court?

One of the concerns imparted to me is that the taxman cannot go back more than five years if he wishes to raise an assessment, but if this bill is enacted, any citizen may be queried about property owned or held by him and same may be confiscated although it is beyond the reach of the taxman. Why beyond five years? Why should it be retrospective at all? Why should it not be only prospective?

Why is it retrospective?

No explanation is given in the explanatory memorandum. The only thing we know is that as from 1 January 2009, every citizen is presumed guilty of being in possession of unexplained wealth until proven otherwise.

This is a major change to our constitution, isn’t it?

Indeed. It’s a leap in the dark. Besides, it wasn’t on the cards when the electorate went to the polls.

The other argument is how do you curb corruption, drug dealing and money laundering without such laws?

We already have an arsenal of laws to combat all those ills. We don’t need any more laws. We already have law enforcement agencies targeting such crimes and dealing with asset recovery. These were in the hands of the Director of Public Prosecutions (DPP). Now they want to place these in the hands of the Financial Intelligence Unit (FIU), which is under the Ministry of Good Governance! There are similar institutions to the FIU in other countries but they only deal with financial intelligence and the financial intelligence gathered cannot be used as evidence. Here the FIU will now be an enforcement agency. Ask yourself why? Why wasn’t it left under the DPP, who is independent under the constitution because he is appointed by the Judicial and Legal Services Commission? When you look at the way the constitution was framed, the fathers of the constitution, including Professor de Smith, made sure not to leave power in the hands of politicians when it comes to such issues. That is a cardinal principle, which you can see throughout the constitution. This principle should not be lightly departed from. The exercise of certain powers under the constitution and the law should be insulated from political influence.

What will you do then?

The only thing we can do is put our point of view forward and hope that our elected representatives who sit in parliament will oppose the bill. We may also challenge it in court when a case arises if we have someone who is aggrieved. We can’t do anything to prevent the bill from being voted with the required majority and enacted.

There was a lot of noise in your office when I walked in…

Yes, we are in the midst of collecting the views of the profession and many lawyers are clamouring for a special general meeting of the Bar Association. They are very concerned.

Read the rest of the Interview in this week's issue of Weekly.