This week, Weekly speaks to Barrister Gavin Glover. He talks to us about the role of the Bar Council in curbing the excesses of the state, the abuse of the provisional charge system, the need for overhauling the police department, and finally, gives us a no-holds-barred evaluation of the government’s performance so far.

The Bar Council has been vociferous about quite a few issues in the last few months. Some thought it had overstepped its mandate. What is your evaluation of this situation?

An independent bar is essential in any well-established democracy. I will go even further and say that a well-established and respected bar is an essential ingredient in any democracy and I don’t think anyone can say the contrary. The recent episodes which we have lived through in the last few months are very scary in the sense that we are now facing a government which is clearly trying to trample over the freedom of the bar and its duty to act as a counter-power to what is perceived as excesses of the state.

The point of view of lawyers in government is that the Bar Council is engages in politics, which is not its mission?

It is a political opinion and I do not share it. I am not a politician and I therefore do not wish to go down that route. The Bar Council was in fact quite right in taking the position it took. Let us not forget that we are part of the system and one of the most important elements of that system is precisely an independent bar which, fearlessly, defends those who are being accused because everyone is innocent until proven guilty. This is the law and nothing but the law.

When you talk about innocence until proven guilty, this leads us immediately into the subject of provisional charges. On this issue, we should have heard your voice. We did not.

That is not strictly correct. I have for a long time been an advocate of the abolition of the system of provisional charges as it is practised by the police. However, there has been no political will to deal with it. The police is heavily reliant on provisional charges to pressurise people when inquiries are ongoing  and unless and until politicians actually decide one day to do away with these provisional charges, us lawyers can only continue speaking out against the system. I take the case of Mr. Ravi Rutnah, who, ever since his arrival in Mauritius has been a huge proponent of the abolition of these provisional charges. Well, he is now in a position of authority as a member of parliament and we expect him to do whatever is necessary for provisional charges as practised to be abolished.

What do you suggest they be replaced with?

Don’t get me wrong, If the provisional charge system is used correctly in a defined protocol, there may not actually be a huge problem but we have seen that it has been used wrongly in a number of cases, not only under this government but also under previous governments and I have been witness to that. 

What does it take for the provisional charges to work properly?

If one applies the provisional charge system at the outset of an inquiry and arrest a possible suspect before even finding out if the complaint that has given rise to the inquiry is substantiated or not, then the application of the system is wrong. But if the system kicks in that after an inquiry has revealed sufficient evidence which would lead an independent prosecuting authority, not the police, to say yes we can prosecute on the evidence gathered to date, then the provisional charge will be effective and acceptable. The Independent Commission against Corruption (ICAC) has been adopting this approach for some time now. When there is a complaint against a public officer and because it is so very easy to go and level an accusation of bribery against a public official as it is often the word of one against that of another,  the ICAC has adopted a policy of ‘investigate then arrest’. So that whenever there is a complaint against a police officer, for example, the complaint is inquired into and when sufficient evidence has been gathered, the ICAC sends the files to the Director of Public Prosecutions’ (DPP’s) office to see whether there is enough evidence to prosecute. The ICAC of course gives its opinion about whether there is enough evidence to prosecute. Then, if the DPP goes for prosecution, the suspect is put on bail pending trial using the provisional charge system. This is a good use of the system of provisional charge. The system in itself is not totally wrong; it is just being used wrongly.

Is it being used wrongly intentionally, you think?

In certain cases yes; in other cases no. It is being used wrongly by the police sometimes as a political tool but sometimes to help the police carry on with their inquiry. There are cases where the police should arrest and keep people inside pending an inquiry but there must be a judicial control of that detention. This is how the provisional charge can be put to good use by the police.

But this is exactly what the police are saying they are doing. “We don’t want people to tamper with evidence, we don’t want them to run away so that’s why we keep them in.”

There is clearly an element of bad faith in arguing that. It cannot, in my view, be said that the police act in all independence and in good faith in all cases. And the converse is also true; it would not be correct to say that in all cases that the police act with malfeasance and incorrectly. And of course there are also these cases where the police are probably wrong and they are probably wrong in good faith because there has been a complaint which looked genuine when it was made. But at the end of the day, they should be accountable for their acts and doings and we should stop hearing the eternal lament: “l’ordre vin depi la haut ca!” (“the order came from above!”) The motto should be inquire first and arrest if the evidence reveals that an offence may well have been committed.

Are the arbitrary arrests and the abuse of the provisional charges the fault of the police or the system?

You see, I’m of those who think that the police system in Mauritius needs a complete overhaul. It is archaic. We hear every single year all sorts of issues regarding promotion exercises, especially among the lower ranks – the sergeants and the inspectors. I’ve had the opportunity to represent quite a number of them in cases regarding promotions. A couple of years ago, I had to represent quite a number of sergeants who had been passed over. As soon as we went to court, they obtained redress.

What should be done to do away with the system?

We can think of a number of manners to departmentalise the police in order to be more efficient in the conduct of police inquiries. Centralising the Central Investigation Division (CID) in one department clearly isn’t the way forward. Everyone knows that the division of labour is one of the precepts of a good economy. So specialisation and departmentalisation. Also, the police should be made accountable to an independent body. For the time being, they are accountable to their superiors and to the political masters of the day only. There is no transparency and no independence and – to add a more politically-correct expression – no ‘good governance’. A few years ago, the Major Crimes Intervention Team (MCIT), was created and it still exists today. Would you believe that the MCIT is under the aegis of the Central CID. Does that makes sense? Of course not.

Why not?

The Central CID (CCID) covers everything. It is the only omnipotent branch of the police. There is no specialisation. They do forgery cases, murder cases, bribery cases, corruption cases and money laundering cases when we know that there are other instances that parliament has created in order to look after these offences. They are all lumped at the CCID. Ask yourself the question: Why is this so?

Why is that so?

We know why. There is definitely method in the madness: the police is heavily politicised, and not just by this government but by previous governments too. It’s been going on for ages.

We’ve heard ministers coming out in criticism of the CCID. Is that a good or a bad sign?

When we are dealing with institutions like the police, the commissioner of police,  magistrates, judges, the courts, the DPP… it is never very reassuring for law abiding citizens to hear politicians, whether from government or from the opposition criticising these institutions. Recently, I was extremely surprised to hear these two ministers saying what they said on TV. I was equally surprised that, notwithstanding what they said, the minister of interior, who is also the prime minister, has done absolutely nothing thereafter.

What did you expect him to do?

He should have taken steps, either by telling the police officer being criticised to step down or to tell his ministers to shut up. But he did neither so the people of this country are left with a huge question mark. The integrity of the police is being attacked by government ministers. What is going on? Who is at the helm?

Is that the impression you get? That there is no captain on board?

Is that a political question?

Yes.

Alright. My personal opinion on what is going on in politics today is that it’s a bit of a shame. We were promised a huge change. We had a change, but we certainly didn’t have the change that we expected. Things have gone totally haywire, and we are today in a storm that we do not know how to get out of. I mean, reading from the papers this morning that Francois Woo of Compagnie Mauricienne de Textile Ltée(CMT) who employs some 12,000 people in Mauritius is thinking of moving away from Mauritius because the slow system of government is very, very scary. If he is moving out, and he has been here for a long time, who is going to replace him? Someone from Dubai will come and invest and build 10 towers?

Anybody who criticises Heritage City either has a vested interest or is antipatriotic. Which one of those are you?

I think the people who said that are very narrow-minded indeed. They can only find two categories of people. I think that you can have a number of other categories. For instance, intelligent people who think very objectively, analyse what they see every day, and actually come to a very simple conclusion: That this is just hot air.  

You mean that it won’t go ahead, or that it shouldn’t go ahead?

I think that if it goes ahead, I will be very, very, very surprised.

Would you be disappointed, saddened or happy if it went ahead?

I don’t believe that it will.

They’ve secured the finances – or so they’ve said. They have the land, and they have the government. They could use the terms that they want.

You have hit the nail on the head. The question is whether they are going to go ahead and if they go ahead, what are the consequences for the country. A number of well-advised economists have already given their opinion on that.

Who are you thinking about? Eric Ng?

I’m not naming each one of them. There has been no independent economist who has come up and said that this is a good thing for the country. In any case, one doesn’t have to be an absolute star to know that if you are actually taking money from a foreign country like Dubai to build this city, that there must be a counterpart. What is it going to be?

Do we know at this point?

Well, for the time being, we don’t, do we?

Then why are we pre-empting?

Because before the decision is made, it’s imperative for government, in my view, to come with a clean pair of hands to tell us, “this is what we are giving on the one hand, and this is what we are receiving on the other hand”. Then, we will decide as citizens of this country whether we would agree to what they are doing or not. The fact of the matter is that we have been shown the bright side of things without having been shown the other side of the coin. Where is the promised accountability?

Is the other side of the coin where is the money coming from and how are we going to pay back?

Not only that but also what is the consideration that we are giving? No one gives anything without anything in return, do they? What do they want from us? When the Qataris go and buy half of Paris, we can understand why, but could you understand why Dubai wants to invest in a plot of land in the middle of nowhere in Mauritius?

But apart from the finances, do you feel that there is a need for building something new for civil servants, government ministers, the Prime Minister’s Office, parliament, to move out of Port Louis?

I think that if this government really had the people at heart, they should look at the system of justice prevailing in Mauritius today and actually put their minds and their money where their mouth is and really modernise the system to offer better justice to everyone in Mauritius. They should look at the courts in which the magistrates and the judges work. They are absolutely abominable. Instead of building offices for ministers who already have large offices, they should look to build good courtrooms and train people to have a better understanding of the judiciary. People today are losing confidence in the judiciary as it seems as if nothing is moving and it takes so long to deliver justice that people are upset about this. One of the better things government can do is to change tack and see how they can improve things rapidly. This would be something real and palpable for the people.

To be fair, the government has looked at the justice system by introducing new laws. Does the Good Governance and Integrity Act for example not help in obtaining justice speedily?

No. I can’t see how it will help towards that. It will probably be met with the usual teething problems. We are expecting the application of the law in at least one case.

You mean in your client’s case?

I am not pointing the finger at anyone. I am just talking about who it was meant for.

Will your client be caught in it?

(Hesitates) I wouldn’t wish to discuss any of my clients. It would be most improper of me to pass any judgment on that. I have seen so many cases at the CCID peter out after a few months that I have my own idea of how things are going to go in the months to come. Let me give you two glaring examples and I will use examples which occurred before December 2014 so that no one gets me wrong. Two high profile cases of mine: Zakir Mohamed and Yajna Ghurburrun were placed on bail before their defences had been recorded. Zakir for a swindling issue when accused by a woman who herself had been arrested for a number of offences involving dishonesty. Both people have had to walk up and down the now infamous CCID steps, have their photographs taken and published in the press, bailed out, remanded on bail, having to comply with conditions set by the magistrate and, a few months later, no further action was advised against them. These are things which must stop immediately as they leave stains on the person’s reputation. It is not possible to continue with that system.

What prevents people from voicing their views on things they are not happy about?

(Long silence) We are in a country where there is a latent fear in the people and that cannot be good. You can feel this in various places and with different people I talk to.

What are they afraid of?

The fear is in fact fuelled by quite a number of factors. When I hear, for example, that jobs are being created in Mauritius, I tend to smile because I know the number of cases I have been involved in and where there have been redundancies, particularly in the construction industry. So I have this wry smile which belies a lot of pessimism. .

Do you mean you are not satisfied with the progress this country is making?

I don’t think the country is progressing at all. We are stagnating. We are certainly not moving ahead. We are just sitting in this pool of mud which is sticking to our feet and preventing us from moving in any direction.The whole psyche of the country is one of wait-and-see. Wherever you look, there are people waiting for something to happen and one cannot help thinking that something bad might happen and which might create an even worse atmosphere. Things are not working out. The ‘feel-good factor’ is nowhere to be seen. Everyone is scared of what might happen. They are worried for their jobs, the economic situation, they are concerned that the promises might never be delivered. And the whole jubilation which followed the results of the general election has died completely.

Do your think politicians are aware of this?

I have no idea. I don’t mingle with them so I wouldn’t know.

What do you mean? You are right in the middle of them, aren’t you?

Well, some of them are my clients, some are my friends, some were my clients and some were my friends. I keep my counsel. No pun intended.

You must have an opinion on this wave of cleaning the country. Is the country now cleaner?

(Long silence) Well, Sarkozy tried to ‘clean’. They are cleaning him up now. The fact that there was a necessity for cleaning is true and it was a legitimate expectation of the public, including me. The fact of the matter is that 15 months on, we have seen a selective approach to this cleaning process. If the Alliance Lepep had actually told the electorate that this was going to be the sum total of their cleaning, I dare say the results of the election might not have been the same.

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