You are a friend of Mauritius and you have been coming to our island for a hundred years. You have worked with and advised political leaders from several parties. What is your take on our democracy?

I don’t vote here and therefore I don’t consider that I have the right to make public comments on politics in this country. Also, I am a politician in Britain so I do my politics in the UK not in Mauritius.

Could we perhaps start by making some comparisons between the laws in force in Britain and the ones in force here? Let’s start with the public declaration of assets, for obvious reasons. How does that work in practice in Britain for MPs?

In the UK, these are not laws but internal rules of the House of Commons. They are effectively standing orders of the House and they require the registration of various classes of assets, shareholdings above a certain threshold, land, rental property and so on. They are declared in a register of interests, maintained by a Registrar who publishes the register online so that the public can see it.

Since 2010, there has been a change in the rules and you now have to publish what you earn outside the House of Commons as well. Why is that? Were there any irregularities?

No! The view was taken by the then Labour government with Gordon Brown as prime minister first that there was entitlement of the public to know whether or not what an MP is saying in parliament might have been influenced by some form of remuneration. Before that, most of the earnings which are connected with your parliamentary position would have been registered anyway. However, it’s most unlikely, for example, that the earnings of a dentist from his treatment of a patient would influence his actions in the House of Commons in favour of the patient. But for reasons which a lot of people found controversial at that time - it was felt that the reason behind the change was political.

“The whole political history of England has been about containing and restricting the power of the executive.” 

What’s so political about that? Doesn’t the law apply to both sides of the House?

Yes, it does but it is mostly the Conservatives who have outside occupations so it is quite possible that Gordon Brown may have had political motives! It is right that your constituents have the right to know how much you earn inside and outside parliament so that they can make an assessment how hard you are working for them and how many hours you are putting outside your parliamentary commitment. So I am not complaining about that rule. However, the motives for which it was introduced may be something different. 

“I think it is right in any democracy that politicians are held to account and are answerable and one of the things they must be answerable for is the assets they acquire during the course of their office. So I think when you start, you need to declare your assets…”

After how many days/weeks to you have to declare your assets after taking office?

From the very beginning! And you keep updating. Any acquisition of assets and any income has to be registered within 28 days. I, for example, practise as a Queen’s Counsel all over the world. Every penny I earn as a QC for the cases I do has to be registered within 28 days.

Over here, the government campaigned on introducing a declaration of assets law but it hasn’t happened yet. Is it important that it takes place at the very beginning of the ministers and MPs’ mandate?

Absolutely! Otherwise it doesn’t make sense. In the UK, it is required within a few days and MPs have to ensure that the register is updated with any changes that occur. It is a very onerous requirement but it is the correct one. I think it is important for people to know what you earn and what interests you have so that they know why you might be saying what you are saying.

Is the rule which applies to backbenchers different from the one which applies to ministers?

I think for ministers, it is even more onerous because a minister can use his office to derive gratification. In their case, there is a ministerial code which includes, for example, a rule that any gift over the value of £80 has to be handed over to the state. And civil servants are the watchdogs of ministerial propriety; the independence of the civil service is at the heart of the British constitution. It is absolutely essential in a Westminster democracy that civil servants feel that they can advise their ministers candidly and fearlessly, if necessary, object to what their minister does. There are formal procedures to register civil servants’ dissent from the political ministers’ decisions.

What is needed for a rule of this kind to be applied?

Well, you need a Registrar to police it and make sure that people do not fall foul of it.

With due respect, you yourself happen to have fallen foul of this by not declaring your income for a few months. Why did you do that?

Yes, I was late in the registration of a number of my own earnings as a QC.

How late?

Between two and seven months late.

And that was considered serious enough because the committee described it as a serious breach and required an apology from you, didn’t they?

Yes, but let me make plain something which is not always apparent from reports in the press: this delay in not registering my earnings did not imply and could not have resulted in any financial gain. This is not a failure to declare assets for the purposes of tax or for any other financial purpose or interest.

“The last thing a minister wants is to have his legislation challenged in court and then struck down as unconstitutional.”

What about conflict of interest?

Well, that’s just it! The committee held in my case there was no conflict of interest. So there was no practical mischief or effect in my failure to declare.

But why didn’t you? You were on the committee so you knew the rules, didn’t you?

I did! I just didn’t get round to it. 

 How were you found out?

Nobody found out. I reported it. Nobody compelled me to do so. When I got round to making my report, when I sat down and did it, I  wrote to the Registrar and said, “Listen, I am on the committee and I’m going to have to step down. These are late and I am sorry.’ But I hasten to add there was nothing I could have gained from not updating the register of my assets and interests on time. This has nothing to do with tax. It is an internal rule of the House of Commons designed to provide transparency in parliamentary debates. It is a purely administrative step which I failed to take  - and I "self-reported" my error.

So how do you feel about our parliamentarians who have up till now refused to introduce a law to make them accountable?

I understand the current government is committed to legislation in this field and I think it is right in any democracy that politicians are held to account and are answerable and one of the things they must be answerable for is the assets they acquire during the course of their office. So I think when you start, you need to declare your assets…

“One of the problems in Mauritius is that legislation tends to go through the chamber very quickly and does not always get the kind of detailed scrutiny that it might, say in the UK, where not only would it go through several stages in the House of Commons, but it would also have to go under the scrutiny of the law lords in the House of Lords and all of the other very senior distinguished English lawyers.”

Otherwise there is no point declaring them at all, is there?

In my view, yes, that is the case. But most importantly, you need to keep updating the register until you leave.

Another promise on the government manifesto was introducing freedom of information legislation. How important is that in a democracy?

You are leading me to talk about politics in Mauritius. I have had the enormous pleasure of being associated with Mauritius for over 25 years. I have many friends here and consider this country almost as my second home. I love this country dearly and it is an immense privilege for me to be able to have an association with it and I am proud of the 25 years I have spent trying in my small way to assist in its development. So I have nothing but praise for this country. The people of Mauritius have been able to live in relative harmony and have had  peaceful transitions of power ever since independence. That is an immense achievement.

Yes, but we have been choosing between a very small number of politicians, haven’t we?

With respect, a consistent tradition of peaceful transition of power is an extraordinary thing. A minority in the world can achieve that. And Mauritius is one of the few countries in the region to have achieved it.

But is democracy just about the peaceful transition of power?

It is not just about peaceful transition by the power of the ballot box but that is the sine qua non of a democracy. Now plainly, what the Mauritian people want to do, what all governments have sought and professed to want to do, is to deepen that democracy and the deepening of democracy is important and this is where your questions to me about the declaration of assets, which is a vital duty for any elected representative of the people comes in and where I also believe the transparency of information comes in. I do strongly believe that there ought to be a right for citizens to have access to public information. I think it’s healthy. I think when sunlight fills the corners and the crevices, it heals and it cleanses, to coin a phrase and I think that that is wholesome. And I think it is inevitable in the development of Mauritian democracy…

You have been coming here for 25 years and Former Prime Minister Navin Ramgoolam was your pupil, wasn’t he?

He was, as indeed, I am proud to say was Muhammad Reza Uteem, Sanjeev Ghurburrun and people from all across the political spectrum of Mauritius. I am politics-blind when it comes to helping the people of Mauritius and I take Mauritian pupils regularly.

I know you don’t want to talk about politics but there is a raging controversy about the role and the appointment of the DPP, could you perhaps draw some comparison with what goes on in the UK?

In the case of the DPP, there is a judicial appointments commission.

Is it similar to here?

Not dissimilar except that in this case you have a constitutional commission, which was modelled upon a British approach but in Britain we don’t actually have it written down in a constitution. As you know, we do so much by convention, by tradition, by historical precedent, whereas in Mauritius it is written down in a supreme law, the constitution. So the DPP is appointed by the appointments commission, usually for a number of years but the conventions around his office are scrupulously observed. His or her (we have a female now, Alison Saunders) independence and discretion are solemnly respected. This is a convention that is jealously guarded by all parties. Political interference with the DPP is unacceptable. The Attorney General has a very residual and limited role now in prosecution. So the office is fiercely independent. Any transgression or trespass upon the independence of that office by any political party would be greeted both by the press and in Westminster as wholly unacceptable. Any attempted pressure on the DPP by any political parties would be regarded as a source of the most acute controversy and would be unacceptable.

What are the most important institutions which make a democracy work?

You know you are touching on one of the most important questions for the development of any nation. Mauritius is still a young nation. It achieved its independence in 1968. I maintain that peaceful transitions of power by democratic ballot are the sine qua non of democracy but of course it is vital to the deepening of democracy, to its resilience and to its health that you have independent institutions, and that the political power finds it unacceptable to interfere with them. In England, political interference with the DPP is regarded as abhorrent - as with the judiciary or with our system of appointment to particular offices which are seen to be necessarily apolitical. If you were seen as a politician to interfere with them, it would rebound on you. So, the politicians don’t usually try it, so strong is the convention. It is vital that institutions are allowed to function without political and executive interference. Because if you don’t have that, you don’t have the solemn observance of the rule of law, which is another fundamental hallmark of democracy.

What about police?

I think an independent police service is vital too. In England, we have a tradition of the constable. A constable is not an employee; he holds an office. There is a very considerable distinction between the holder of an office and an employee. An officer has an independent right to decide whether to arrest and must be accountable for it himself. It is very important too in thinking of institutions that we don’t only think of the obvious ones, police, the prosecution authority, the judiciary, all of which should be so solemnly respected as to be unacceptable socially for politicians to interfere with. But the civic institutions need to be equally independent. The unions, the social organisations ought not to be aligning themselves with political parties. In order to deepen democracy, you have to have a range of civic institutions, which people find their fulfilment in working for, and which are wholly non-political. It’s only once those institutions are resilient and strong that you can resist the intrusive nature of the executive. And, really, the whole political history of England has been about containing and restricting the power of the executive

Did you hear about the law that was introduced recently, which is the Good Governance and Integrity Act? Do you see it as actually giving more power to the executive or you have similar laws in the UK?

I have to say I have not studied it in the greatest of detail but I applaud the sentiment behind it. If the sentiment behind is to create a greater capacity to deprive those who have unlawfully acquired assets and if it’s applied equally and impartially, one can only applaud the imagination and the initiative that are behind it. What troubles me when I think a little of this legislation is that it is unprecedented in certain respects.

What do you mean?

I mean to give to an executive agency the power to demand from a citizen an explanation of where he or she acquired their assets is quite normal provided it is by means of seeking a judicial order with objective criteria for the granting of that order. But in this case, I understand that power is to be given to an agency without the need for an order of a court. Now to some extent, that is offset if a judge or a retired judge of great standing is appointed in charge of the agency and of course the agency’s decisions will be subject to judicial review by the Supreme Court. So, personally, while I think there are substantial difficulties with the legislation, I think the legislation could be made compliant with the constitution and I certainly don’t suggest for a moment that if applied impartially and properly, it is legislation that could not find its place in a democracy. Indeed, it can.

Even if it is controlled by the executive?

As I understand it, the intention is to give the power to an agency headed by a former retired judge of the commonwealth. If that's correct, then it would be quite unusual for a judge of such standing to accept political interference. It seems to me that is a very substantial guarantee. I think there are problems with it, which, had I been advising, I might have observed in the constitutional analysis of this legislation. But, what I am really saying is that the legislation in its conception is perfectly reasonable, although I think that there are improvements that might have been made. Long ago in Mauritius, I remember discussing with successive governments the possibility of a second chamber. One of the problems in Mauritius is that legislation tends to go through the chamber very quickly and does not always get the kind of detailed scrutiny that it might, say in the UK, where not only would it go through several stages in the House of Commons, but it would also have to go under the scrutiny of the House of Lords and thus of very senior distinguished English lawyers and law lords. 

Do you mean this law went through very fast?

Well, I think that it went through quickly and it may not have had the kind of scrutiny it might have had in the UK. Ministers in the UK tend to find very helpful the scrutiny that the House of Lords can give because it will point out weaknesses. The last thing a minister wants is to have his legislation challenged in court and then struck down as unconstitutional.

Is the GGIRA likely to be challenged in court?

I think it’s pretty likely that parts of it will founder on constitutional challenge.

Which parts of it?

I probably should not observe any further because it’s not my role to prompt but having had a look at the legislation, there are aspects of it that I think any human rights or constitutional lawyer would be concerned by, but they could be easily resolved. I think the initiative behind the law, if the intention is to apply this impartially, equally and without any kind of ulterior motive…

That’s a lot of ifs!

Of course it is but they are ifs that are common to any democracy; any law can be abused but the law itself is in my view laudable in its conception and could quite easily be made compliant with the constitution.  I repeat, provided that the agency is headed by a judge. I do think that there are aspects of the legislation that need correction but I repeat, the ministers of Mauritius do not have the advantage of the kind of detailed legislative scrutiny that in some other countries with two chambers you would get.

“A provisional charge is meaningless. All a provisional charge means – and it’s a practice that has no replica anywhere else in the common law world – is that the police have opened an investigation.”

Who wants scrutiny if you can push the law through parliament in such haste?

I don’t agree with you in this respect because I don’t think that any minister pioneering a bill through the House wants his legislation to be vulnerable to constitutional challenge. Because it’s pointless. You’ll bring it in and within six months it would be suspended while the court deliberates upon the constitutionality, which is what may well happen with the Good Governance and Integrity Reporting Act. I would maintain that the ministers would want to have that kind of scrutiny so that it’s proofed against judicial challenge later. What would be the point? And as I understand, the ministers in this case did go through some considerable exercise of public explanation and made amendments to the Act.

Tell us a bit about provisional charges and how they turned into the arbitrary arrests we are witnessing today.

My own understanding based on a number of cases that I have had the privilege of arguing on behalf of the Mauritian state in the Privy Council is that it does go back in history and when the police arrested somebody, the government and the judiciary wanted to be sure that the power of arrest was not being exercised arbitrarily but was fair and that the person was not being kept indefinitely under arrest without charge. And so the practice was developed by the courts in Mauritius and one can quite understand the purpose of doing so and the benefits of insisting that whenever a citizen is arrested, he or she would have to be brought before court.

You obviously have nothing similar in the UK, do you?

If that happened in England, with 60 million inhabitants, the courts would grind to a halt because there are probably a million or more arrests every year and so it simply would not be possible. But in an island such as Mauritius, particularly in pre-independence days, it was possible for the judiciary to maintain its close control over the police. But I think it’s had an unintended consequence. It clearly stems from the motives of controlling the arbitrariness or the potential arbitrariness of arrest but the difficulty of that seems to be that first, it sends completely the wrong message. A provisional charge is meaningless. All a provisional charge means – and it’s a practice that has no replica anywhere else in the common law world – is that the police have opened an investigation. It does not mean that there is any evidence against you. It does not even mean, really, that there is anything more than a possibly misconceived suspicion of a potential crime. But of course a message goes out that somehow a charge has been made against you whereas, in fact, there is no charge unless and until the Director of Public Prosecutions is satisfied there is some real evidence and actually brings one. Secondly, it means that the citizen is subjected to constraint because invariably the practice has grown up here on behalf of the police to object to bail. So, the citizen often finds himself under constraints on his liberty, even at risk of gaol, when in fact there is no more than a mere suspicion that he may have committed an offence and there has been no charge. And so I think that there is a real difficulty with the unintended consequences of provisional charges.

What is the alternative?

What would need to happen I think is a complete revision of the provisional charge system, which is not functioning correctly at the moment. I think the difficulty at the moment is that people are faced with something that appears to be a charge when, in truth, it’s no more than a police investigation. 

And there are some people as you must know who for years will be out on bail on a mere suspicion.

Yes, but the magistrates as I understand it are vigilant to ensure that investigations do not go on indefinitely. Certainly, there have been decisions of the court to that effect that I have seen in my capacity as counsel for the State and for the Director of Public Prosecutions, and I can see a very lively and robust vigilance on the part of the courts to protect the citizen against indefinite investigations.

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