Even with the resignation of the PMSD from government, the Prosecution Commission bill isn’t necessarily going away, with the prime minister stating that it will be brought up in parliament in March. Weekly speaks to former UN judge, Vinod Boolell, who explains why he thinks the Prosecution Commission is dangerous and sheds light on the recent legal changes in the constitution.

The Prosecution Commission bill has wreaked so much havoc. What’s so worrying about it?

If you look at the wording of the bill itself, it’s merely the replacement of the director of public prosecutions (DPP) by the Prosecution Commission (PC).

How is it the replacement? The DPP will remain in his post and there will be an independent commission which will make sure that the DPP is accountable.

The DPP will be merely an agent or a puppy that will wag its tail at the behest of the commission.

The commission will be independent as it will be headed by three former judges.

Do you sincerely believe that just by appointing three judges at the head of the commission, it will give it the veneer of respectability and independence? I ask the question!

The question I am asking is this: If the former judges are going to be appointed by the Judicial and Legal Service Commission (JLSC), where is the problem?

What criteria will the commission use to call for these judges? Will they call all former judges and see who is more competent/independent/qualified or will it just pick judges they feel are in the good books of the government.

Why would a respected and independent commission pick judges close to the government?

I am not saying they will. I am asking what criteria will be used.

Can I put it to you that they will use the same criteria they use for nominating the DPP. If you trust them with that, why wouldn’t you trust them with the other?

When the commission appoints the DPP, there are criteria to be respected including the person’s track record. Once a judge has retired, who knows their track record or what they have been up to. Let’s take a recent example: We now have the Integrity Reporting Commission that has just been constituted with Lord Philips, a respected British judge, and two assessors. Can someone tell me what criteria were used to pick those two assessors, a former judge and a former permanent secretary?

Those appointments were made by politicians not the JLSC. Isn’t there a difference?

If the PC members too end up being appointed by politicians, we will find ourselves in the same situation. But assuming they are not, there are other issues to be considered: Will these former judges once appointed enjoy security of tenure as in the case of the DPP and judges? Will they be amenable to sanctions in case of misbehaviour or abuse of authority for example as in the case of judges and the DPP? There is nothing about that in the law!

Why do you say that the members of the commission will end up being appointed by politicians?

What the bill says is that if by a period of time, the commission has not been able to appoint any former judges, then the appointment will be made by a committee consisting of the prime minister, the leader of the opposition and the president.

Are you at ease with that?

Not at all!

Why not?

Because I don’t know who they will pick and what the criteria they will use are. And consider this: Suppose no former judge accepts the appointment, what will happen?

Oh come on, many former judges are queuing up for such a juicy position…

No, I don’t think so. I, for one, am not! And I think no former judge who respects himself will ever accept such a position.

How many former judges have the kind of self-respect that would make them spit on a position which is likely to carry huge power and scrumptious benefits?

I don’t know about the others but I wouldn’t.

So this is just a hypothesis. Suppose there is a queue – as I am convinced there will be – do you trust the appointment process?

No, I would never agree to have politicians nominate members at such a commission and I don’t agree with the constitution of such a commission anyway. Because what we are talking about is not just a body which will supervise the DPP. We are talking about a commission which will actually take the decision of whether to prosecute or not to prosecute. Since we already have a system where the DPP takes that decision, I would not feel at ease with a supra body on the head of the DPP appointed by politicians. I am totally against such a body being set up. What people seem to overlook – deliberately – or feign to ignore is that one of the most important attributes of Mauritius is the rule of law and one of the most important components of the rule of law is the independence of institutions. I ask the question, today they want to control the DPP or make him an agent of this supra body, what is next, the court of law if those in power don’t agree with the judgment, the abolishment of the PC if they disagree with the judgment? What’s next?

Talking about changing the constitution and setting up another body where appointments are made by politicians, let’s talk about the Integrity Reporting Agency. The new leader of the opposition, Xavier Duval, has written to Lord Philips to tell him that the assessors are what he calls ‘notorious political agents’ of the MSM. What do you make of that move?

I would not have put it as bluntly as the leader of the opposition did. What I would have told Lord Philips is ‘before you assume your position as head of that agency, which is an important agency, make sure that you are made aware of the criteria used to select the assessors and what their track record is. I’m concerned about the way the appointments were made’. Let us not forget that when the controversy about the DPP started, one former judge contacted the DPP about a high profile case. Ask yourself who that former judge was and why he did what he did. Did he act on his own accord? Was he sent by somebody? I ask the question because I don’t have the facts. Bear that in mind. Full stop.

What do you think will happen to the agency?

I believe we should wait and see the reaction of Lord Philips. Would he still be prepared to chair that agency, would he query the government or would he just say “okay, in these circumstances I’m afraid I will quit”? Let us wait for his reaction. I think that the credibility of the agency will depend a lot on what Lord Philips does.  If Lord Philips decides to quit, then the credibility of the agency will be undermined.

What if he stayed?

Then you come again and ask me the question.

If we were having a bet, on which side would you put your money? That he stays or that he goes?

If I were Lord Philips, I would quit the Integrity Reporting Agency.

Coming back to the Prosecution Commission bill. Lawyers were up in arms. But more than that, a major partner in government has left. Some people say that it can’t be just because of that. Some say that it’s a serious enough issue for him to go. Where do you stand when it comes to this polemic?

I personally believe that the Prosecution Commission bill may have been the catalyst to force the major partner to leave.

Do you think that it’s a good enough reason for them to go?

Yes, but I will add one thing. Where were they when there were attempts to arrest the DPP under the circumstances that we know?

Isn’t the PC something that is above all this, that is even more serious than arresting the DPP?

As I told you in the beginning, the PC is the destruction of the DPP as the office presently stands. What is worse is that if he doesn’t comply with the directives of the commission, he is guilty of misconduct and amenable to sanctions. This is very serious.

How would the DPP’s office and the PC work together as far as distribution of tasks is concerned?

That’s just it! It is very complex. Suppose that the DPP says not to prosecute and the commission says prosecute. The DPP files an indictment before the court. The magistrate or the judge queries the prosecutor, who normally will be a police officer until the DPP steps in. Which lawyer will go and submit to the magistrate or the judge? Will it be someone from the DPP’s office, when these officers themselves have said not to prosecute? Or, will the commission have its own body of lawyers to go and argue the case before the court? All this is very complex.

This PC bill has only been postponed. According to the prime minister, it will be presented again in parliament in March. He must be rather hoping to have enough turncoats ratting on their party to get some power and advantages. Do you think enough opposition members will cross the floor to help pass such a dreadful law?

If they do, they would have to explain to the public that they are helping to destroy one of the most important fabrics of the constitution that might hit them back tomorrow. Don’t forget, it may be irreversible. When will a government get three quarters again to reverse that situation?

What is your wish for the country in 2017?

That the country prospers whoever is in power.

What is your wish for the government, or for the opposition?

I have no wish for either. I will express my wish when I’m alone with my conscience in that booth.ess my wish when I’m alone with my conscience in that booth.