Many legal and political issues, including two controversial bills, as well as the sanitary situation in the country have been making the headlines this week. We talk to Constitutional Lawyer Milan Meetarbhan about these and seek his expert opinion as a lawyer and as a political observer. 

The sanitary situation apart, there is a lot happening on the political as well as legal scene. Let’s start with Alan Govinden’s death last week. Does it signal the end of the inquiry into Angus Road, as some people are suggesting?
Why should it? There is a difference between an investigation, a decision to prosecute or not and ultimately a trial and conviction. The decision to continue or stop an investigation may have to be made in any case where for instance the one and only suspect is no more and no one can be charged at the end of the day. With regard to prosecution, the relevance of any evidence or availability of a witness may be taken into consideration by the DPP’s office in weighing the pros and cons of going for trial. With regard to a trial, the absence of evidence from a victim for instance may at times be the cause for failure to obtain a conviction. 

So the inquiry will carry on as planned, will it?
In my view, there is no reason why it should be stopped. In fact, there may be the need for another inquiry to find out why more than 10 years after an investigation started, the matter has not yet been referred to the DPP. The inquiry should also probably find out why the request for mutual assistance to UK authorities was apparently cancelled by the attorney general’s office soon after the 2014 elections. 

We are talking here about taking the ICAC and its director to court, are we? Is that legally possible?
The courts have decided that the decisions of the DPP may, under certain conditions, be reviewed by the judicial branch of government. In 2016, Prime Minister Anerood Jugnauth sought to introduce constitutional amendments which would enable a commission appointed by the political executive to overrule the decisions of the DPP. Why should the decisions, omissions or other acts of ICAC not be subject to review for failure to act diligently? In fact, unlike the DPP’s office, ICAC is not a constitutional creature but was set up under an Act of Parliament and its director is not, unlike the DPP, appointed by an independent commission but by the prime minister! So, ICAC may be subject to judicial control but in what circumstances will the locus standi requirements (i.e. the right to act before the courts) be satisfied for the courts to accept jurisdiction in a case where an investigative authority may be dilly-dallying?  

So your answer to that question basically is that you can sue the ICAC but getting the court to accept that is a tall order, is it?
As the law stands and according to the rather conservative approach taken so far, the court will have to be satisfied that one has the legal standing to bring a case before the court looks into the matter. This is often a difficult hurdle to overcome. 

“Those who are facing serious allegations of abuse have their own well-rehearsed paybook: Keep quiet, let the storm die down and then keep the spoils of crime. Or else you shift the debate and nudge everyone to talk about stories like being of royal lineage.”

The prime minister, Pravind Jugnauth, finally gave some answers to the questions raised in parliament about this issue. Does that quench your curiosity?
I am not curious to know what happened. I am concerned about what seems like the unwillingness or inability of the investigative authority to act with diligence in this matter. You say that Pravind Jugnauth finally gave some answers. Did he? Many lawyers believe that his statement at a press conference raised more questions than provided answers to the questions already raised. I understand that Jugnauth is suing for defamation over remarks made in connection with this case. When the case is heard and it is hoped that he will ask for an early trial to clear his name, he will no doubt have an opportunity to answer questions in court and under oath, which will throw light on the whole question. 

Exactly! The rest of the answers can only come from institutions – which he is calling on everyone to respect. That’s fair enough, isn’t it?
Indeed, I read from press reports that Jugnauth called for respect for our institutions. I could not agree more. But the question is whether the man currently holding the position of head of government is showing respect for institutions, whether by his appointments or endorsements, he is making our institutions more or less respectable. 

What appointments or endorsements are you referring to? 
When he appoints his own lawyers and other people close to him to the Electoral Commission, does that make the commission an institution which is more deserving of respect? When he appoints the speaker of the national assembly and endorses the way he conducts proceedings, does that make the chair more or less deserving of respect? When the constitution provides for security of tenure and operational independence for the commissioner of police and he appoints an acting commissioner, thus effectively seeking to bypass the constitutional guarantees to which a substantive CP would be entitled, do Mauritians have greater or less respect for institutions?  When he appoints political cronies with no relevant qualifications or experience at the head of technical institutions/regulators, does that make these institutions still deserving of respect? I could go on and on.

But beyond the persons appointed, institutions should be respected, shouldn’t they?
Yes, people should respect institutions. But respect is earned and must be deserved. It cannot be commanded. Independence and credibility and hence respect may be undermined by the very person who is calling for respect. This week, it was announced in the UK that regulators had intervened to ask that the panel conducting interviews for appointments to the BBC be changed because some of the interviewers were not considered to be independent enough. Can you imagine any regulator doing this in Mauritius? 

As a constitutional lawyer, what exactly is your opinion on the locus standi in relation to private prosecution? 
Whether it is to seek constitutional redress or to obtain judicial review of administrative decisions, the rules on locus standi are often too restrictive and they have to be reviewed. Similarly, with regard to criminal matters, when law enforcement agencies which are rightly or wrongly perceived to be weaponised by the political elite have the monopoly over the search for truth and justice, civil society should be empowered to act, especially for and on behalf of victims. Sometimes the victim may be society itself. I understand that two years ago, the president of the Labour Party gave a statement to the police alleging criminal defamation by officials of the MBC. Has anyone heard anything about the follow-up on this case by the authorities concerned? On the other hand, if people believe that when a statement is made to the police by those close to the regime, the police may act in the late hours of that same evening or in the early hours of the following day, then alternative independent right of action may be required in other cases. 

Does private prosecution always have to go through the DPP?
Yes, as far as criminal matters are concerned, even if there is a private prosecution, the DPP will still have the last word as he is empowered to discontinue the proceedings when required. 

But it is very difficult to hold public officials to account, doesn’t it? Unlike in other countries.
It is high time that dereliction of duty by public bodies or officials who have a legal obligation to act but fail to do so for improper motives are reviewable by the courts and, where appropriate, criminal sanctions are taken.  

In spite of the private prosecutions and the noise made by the press and some lawyers, impunity seems to be the order of the day, doesn’t it? 
Indeed. We are living in an era of impunity. Public officials are convinced that they  will weather any storm and it’s  enough to just let a few weeks lapse and everybody will forget about the ignominy and the regime would then have succeeded in moving its pawns the way it wanted and ultimately still achieve its desired purpose. Those who are facing serious allegations of abuse have their own well-rehearsed paybook: Keep quiet, let the storm die down and then keep the spoils of crime. Or else you shift the debate and nudge everyone to talk about stories like being of royal lineage and thus divert attention from the substance of the allegations! This strategy may be shrewd management of public opinion but it should not in a democratic state deter law enforcement agencies from acting and fulfilling their legal obligations.

The petroleum bill being rushed through parliament is meeting a lot of criticism from the opposition. What is so worrying about it?
When the government announced in 2012 that it will work to make the Ocean Economy one of the main pillars of the economy, this was followed by a National Dialogue on the Ocean Economy in 2013 and subsequently a roadmap was published. The introduction of a petroleum bill or the updating of the existing petroleum legislation was envisaged as part of the new policy. Such legislation is a component of a legal framework relating to ocean resources. However, there are two important considerations with regard to the bill before the National Assembly: first the actual contents of the bill and second, the drastic changes over the last decade regarding climate change. Use of fossil fuels over the next few decades is, to say the least, uncertain and highly controversial. Will the petroleum companies be prepared to invest millions of dollars in prospecting and exploring and subsequently exploit offshore petroleum reserves, given these concerns? Some countries where oil reserves have been found have declined to proceed with exploitation because of what has been called the “resource curse” since in the long run, this could do more harm than good. In addition, the introduction of the current bill with a certificate of urgency, issued by the prime minister on the eve of the COP26 where fossil fuels would be front and centre of the debate on climate change shows that the head of the Mauritian delegation at COP 26 was either totally ill-informed of what would be on the agenda at Glasgow or just couldn’t be bothered.  

“I would not wish to comment on what Jean Claude de l’Estrac said about the leadership of the Labour Party at a time when the man who led the party to victory in three general elections and enabled it to be in government for 14 years is still recovering from serious health problems.” 

If we forget about COP 26 for a moment what are the objections to the bill? 
There are many problems and concerns about the licensing powers and other matters pertaining to transparency, the environment and so on. There are further concerns about the indecent haste. Why did this bill, even if arguably important and necessary, have to go to the assembly with a certificate of urgency? Why was it so important that the 14-day rule provided in the standing orders had to be bypassed? Of course, one cannot avoid some wild speculation as to the reasons for this sudden rush. 

The cybercrime and cybersecurity bill is also drawing a lot of flak. Some experts say it is another way of re-introducing the interception of messages the government was trying to do through the last consultation paper. Do you agree with that?
The consultation paper published by the government on regulating social media was universally criticised. I cannot recall another occasion when so many global organisations put pen to paper to warn against a serious threat to freedoms and democracy in Mauritius. It was then announced that the proposals would not be implemented. Now the government is coming up with a cybercrime and cybersecurity bill. We must make sure that the discourse on abuse and harm to our children and social harmony does not conceal ulterior political motives. 

Does it? The government states that, with this bill, it is implementing its obligations under the Bucharest Convention on Cybercrime…
This convention was negotiated by and for members of the Council of Europe. Other states which had no say in the adoption of the convention were subsequently invited (I use the word “invited”, advisedly to remain polite) and Mauritius became a party to the treaty. In any case, the convention provides a broad general framework and leaves it to parties to enact their own legislation.  Of course, there is always the risk that provisions of such national legislation may be determined by national governments to suit their own political objectives.  

But surely some control of all the nonsense being exposed on the net is needed, isn’t it?
There may be nonsense as you say on the net. There may be fake news as Trump says. There may be threats to social harmony. The question is who should regulate and what should be the remedies available to those who have been victims of social media abuse. The responsibility in the first instance is that of providers of social media platforms and then that of the state which should ensure that judicial remedies and reparation are available. But at the same time that we talk of abuse on social media, we should be wary of abuse by the state purporting to defend its citizens against social media abuse. Whatever legal provisions are enacted ostensibly to protect society may be perverted by autocrats to supress dissent and harass opponents whilst their own use or misuse of social media against their opponents goes unpunished.

On the political scene, the government is riding high and the opposition seems to be in the coma. Is that also your impression?
The main preoccupation of Mauritians at this point is a possible surge of Covid cases and its consequences on their lives and their livelihoods. 

Is the Covid situation that bad, according to you?
Some would say that the situation cannot be that bad as the chairman of the National Taskforce on Covid would not otherwise have been spending two weeks overseas. In addition, the people who have been watching the chairman of the task force putting on the garb of party leader and addressing a series of political meetings disguised as Divali celebrations might have been telling themselves that they could let off their guard if such meetings could be held every day. If a country’s leaders can hold a series of political meetings, then surely the situation cannot be that bad and, psychologically, people wouldn’t think that the situation requires severe restrictions on their own movement and social interaction. The situation can get worse when people let off their guard and authorities could in fact have encouraged this behaviour. 

In an interview in Mauritius Times, Political Analyst Jean Claude de l’Estrac says, “ La clé de la prochaine alternance est entre les mains du Parti Travailliste”. He calls on former Prime Minister Navin Ramgoolam to act as a statesman and step down. How do you react to that? 
I believe that Jean Claude de l’Estrac, who is an astute political analyst, is right in saying that the weight of Labourites in the outcome of future elections may be decisive. As I have said before, there are still many Labourites even if the Labour Party is not always actively engaged. The party with more than eight decades of history behind it and which shaped 20th century Mauritius must still be able to help shape 21st century Mauritius. I would not, however, wish to comment on what Jean Claude de l’Estrac said about the leadership of the party at a time when the man who led the party to victory in three general elections and enabled it to be in government for 14 years, after the MSM had declared that the Labour Party had been confined to the dustbin of history, is still recovering from serious health problems.