An insider of insiders leaves the heart of the political kitchen and turns into a whistle blower, revealing one of the biggest scandals ever known in this country. A prime minister who only half-heartedly denies the allegations. A speaker who runs to the rescue by rejecting a parliamentary question before he hears it and throws all the opposition out. We seek the legal views and insights of Milan Meetarbhan, constitutional lawyer, about this whole saga.

Three major revelations were made in the espionage gate this week: the espionage itself, the list of pro-government and pro-opposition in Air Mauritius which former Mauritius Telecom CEO alleges he was given for the purpose of sacking some and keeping others and fact that there seems to be a parallel unelected government. Which of these do you find more serious?
All allegations from an insider must be taken seriously. But these allegations can be broadly classified as being either pertaining to internal politics of the ruling clique or as being of national interest. I will focus only on what is of national public interest and often potentially involving possible beaches of law.

Let’s start with the allegation of espionage…
Yes, the allegation that the person currently holding the office of prime minister and minister of home affairs AND defence wanted a foreign entity to assist Mauritius in having access to all Internet traffic presumably for the benefit of both the Mauritian and foreign governments. At this stage of course we do not have all relevant information and we can only raise a number of questions.

First, is the foreign entity involved a State or a private entity, though we have to bear in mind that in some cases a purportedly private entity may in fact be State controlled?

Second, was the intention to allow that entity or State to intercept or monitor all traffic for its own benefit or for the benefit of the Mauritian government or for both?

Third, why did that entity or State and/or the Mauritian government want access to all internet data?

All these are very important questions for all citizens but also for the image of our jurisdiction, for trust in our institutions and for investor confidence.

The leader of the opposition intended to raise some of those questions in parliament on Tuesday but he was not allowed to do so. What does this tell you about the allegations themselves?
There was the allegation, now we also have what the whole nation witnessed in parliament on Tuesday. The second compounds the first and enhances suspicion in the minds of people. We all know what happened in the Watergate scandal. There was a break-in and then there were lies, cover-ups, followed by other lies and cover-ups to conceal the previous one. This is what led to the resignation of the president of the United States.

There were a lot of reactions to what happened in parliament during the Private Notice Question on the allegations. What is your take on that?
We have an allegation by an insider giving a first-hand account of what he had been told. It is the PM who decides on how he wishes to respond to the allegation but it is the duty of the PM to answer questions from elected representatives of the people in parliament on this very serious allegation. The reaction of Kailash Purryag who was a respected speaker and president of the Republic and who is not known for any hyperbole, to what happened in the National Assembly reflects in my view the sentiments of many Mauritians.

“If police officers have in fact provided reports on political affiliations of employees of air mauritius and mauritius telecom, then one may ask whether they have acted in breach of the law. Those having commissioned the  reports would also have to be investigated.”

What is the sentiment of Mauritians, according to you?
The reaction was one of shock, disgust and revolt as Mr Purryag put it. Some people told me that they were ashamed to be Mauritians after they saw what happened in the Assembly. Many Mauritians also had the same impression that Mr Purryag had, namely that what happened was done according to a pre-scripted scenario. Former Prime Minister Paul Bérenger has also stated that, in his view, everything that happened in the Assembly on Tuesday had been stage managed and planned. Whatever may be the case, the one major question on everyone’s mind is WHY? Why did anyone want to stop questions being asked of the PM? There is a specific provision of our constitution which reinforces the conventional rule that ministers are accountable to parliament. Whatever political, ethical or legal breaches that may have to be inves- tigated following the allegation made by the former CEO of Mauritius Telecom, there is now another major question that is being asked: WHY? WHY did the PM not make himself available for questions?

The speaker ruled that the question was not admissible because he says the PM had already answered the question…
The speaker did not rule that a question from the leader of the opposition was not admissible. He had not even heard the question. His ruling was that no question would be allowed.

What exactly is this espionage allegation about? We know the authorities can access all our data if they want anyway, can’t they?
Our Constitution protects, under its Section 12, the freedom of expression. This includes the freedom to receive and impart information without interference AND the freedom from interference with one’s corres- pondence. In addition, Sections 7-10 of the Cybersecurity and Cybercrime Act provide for offences relating to access to computer data, interference, access to data with intent to commit a crime. However, in these cases the law refers to “unauthorised” acts. So the question that arises is what is an authorised act and who has the authority to give access or allow interference? The Act also provides that where an investigatory agency has reason to believe that data is required in connection with a criminal investigation, it may apply to a Judge in Chambers for an order to access past data or real-time monitoring of data.

 In 2021, the Information and Communication Technologies Authority published a consultation document which proposed the establishment of a mechanism to intercept internet traffic. Is this phase two of that?
Indeed, the proposal was not only for the intercepts to be done under a law but also provided for internet users to give their prior consent for such intercepts. This would have effectively meant that all internet users would have given their prior consent as they would not otherwise have access to internet services. In an article which I co-authored with colleagues from Harvard, we said that the proposal “is to route all social media web traffic through government proxy servers, allowing it to be cached, searched, surveilled, and blocked. This is equivalent to a common tactic among malicious hackers, referred to as a “man in the middle” attack. In this case, the attack would be open, permanent, and sanctioned by domestic law”. We also that, “Over the past several years, digital rights advocates have worried over the implications of new laws around the world. Sup- posedly designed to rein in the social media giants along with disinformation and other harmful speech, these laws represent significant new intrusions on peoples’ rights to free expression and privacy. The Mauritian government’s new proposal represents a drastic acceleration of the trend, a democracy using the threat of offensive speech online as a thin rhetorical veil over what is, at heart, an authoritarian power grab.” Several NGOs from across the world condemned the proposal and the Mauritian authorities then backtracked. At the time, the government stressed that the proposal was not that of the government but of the ICTA. However, we are now told that the prime minister himself had allegedly given instructions to allow a “third party” to act as the man in the middle and monitor all incoming and outgoing internet traffic. And this time, the proposal was apparently not to do this under any law or ask for users’ consent but surreptitiously.

“Does anyone in his right mind in this country believe that the police, who arrested someone accused of treating a crony of the regime as a “gopia”, would have immediately arrested the minister for home affairs or even interviewed the minister responsible for the police?”

Though Sherry Singh didn’t want to say which foreign government was supposed to be given permission to sniff our online communication, everyone seems to have made an idea of who he could be referring to. What would Pravind Jugnauth gain by allowing such an anti-patriotic act? There must be something huge in it for him to go that far, wouldn’t you think?
As you would expect, there would be wild speculations about who that third party is .I am not necessarily concerned at this stage about who it was. My primary concern is about whether such instructions as alleged had actually been given, what the motivations behind the proposal were, if the instructions would amount to instructions to commit an illegal act. We do not know at this stage if there was a foreign government involved in the alleged plot and I believe that at this stage there may be questions about unpatriotic or illegal acts but it could be premature to talk about prosecution for high treason though an act could have been politically considered as treason. Having said that I am not surprised at what many people believe might have been the reason for the proposed interference though I guess that we will see the usual spin about protecting national interest against terrorism or protecting abuse on social media. People would be re- luctant to accept that these were the real reasons.

Talking about illegal acts, the government has been saying that Sherry Singh should have given a statement to the police ….
Though in the case of an act amounting to high treason there is an obligation under the law to report the matter, the last thing that the person making the “sniffing” allegation should do is to go to the police. Going by past record, not much would have come of this and the government would still have used this as a pretext for not commenting on the allegation on the ground that the matter is being investigated by the police. Does anyone in his right mind in this country believe that the po- lice, who arrested someone accused of treating a crony of the regime as a “gopia”, would have immediately arrested the minister for home affairs or even interviewed the minister responsible for the police? We are reminded that we are a parliamentary democracy but the regime is telling the people that the way forward is not to raise the matter in parliament but for the matter to be referred to the police so that it can investigate an allegation made against someone who is the minister for the police, who meets the commissioner of police and head of National Security Service (NSS) daily and who was instrumental in the appointment of the head of the Central Investigation Division (CID)! There is first and foremost a political obligation to answer the very serious allegation made by an insider. The government is accountable to the people and its immediate obligation is to be transparent and account to the people through their elected representatives. If an inquiry has to be made, it’s certainly not for the police to do that.

If the government has nothing to hide why not appoint a select committee of parliament chaired by an opposition MP and consisting of an equal number of MPs from the ruling and opposition parties to investigate.

What would the committee investigate? High treason? Is there a case for that?
Making a case for public opinion to judge and sanction the offender at the polls is one thing but making a case in court to secure a conviction is another matter. There is no doubt that people would be wary of possible access being given to foreign parties and giving away sovereign rights. But at this stage, I am not sure that from a strictly legal perspective there is enough evidence of such a serious charge. Of course this is still an unfolding story and new developments may justify a serious charge at a later point in time. But at this stage, people are concerned about invasion of their privacy and the privacy of their communications. Whether such invasion of privacy has taken place or there was an intent to surreptitiously invade their privacy after an initial attempt to do so in 2021 failed is something which is of concern to everyone. If there was such an intent and steps were taken to achieve this goal, then a clearer case of conspiracy or attempt to breach the law or giving instructions to commit a crime could be established.

“If there was such an intent and steps were taken to achieve this goal, then a clearer case of conspiracy or attempt to breach the law or giving instructions to commit a crime could be established.”

The prime minister had the opportunity to refute these allegations and clear his name which has been splashed with a lot of mud. He instead treated this whole matter as a minor incident. Was that the only thing he could do under the circumstances?
The official response to the very serious allegation about what could amount to an illegal act and have consequences for our country’s image has been to shift attention to the record and character of the person who made the allegation. In other words, and this was clear from the start with the first statement made by a minister in her call to a radio station, the strategy is that the best defence is attack. Attack the whistle blower rather than refute the allegations.

That continued in the National Assembly, with the help of the speaker. Is there any legal recourse against what happened there?
If there is, it might have to be directed against the speaker but the political responsibility for appointing the speaker and condoning the conduct of the speaker lies with the prime minister. The primary duty of accountability and transparency in this new scandal lies squarely with the prime minister.

The allegation of a list of people and their political inclinations is shocking. Though we have always suspected the practice to exist, Singh gave us inside information confirming our worst fears. How does the National Security Service know what our political convictions are with such certainty?
If police officers have indeed carried out the exercise as alleged, then there may be serious questions raised as to whether they have acted outside the powers conferred upon them under the Police Act. The functions of the National Security Service set up under Section 18 of the Police Act are to obtain intelligence relating to state security. The law specifically provides that no police officer can trail an individual on account of his political activity and no police officer attached to the NSS can be involved in any political activity. If police officers have in fact provided reports on political affiliations of employees of Air Mauritius and Mauritius Telecom, then one may ask whether they have acted in breach of the law. Those having commissioned the reports would also have to be investigated.

Sherry Singh, the insider of the insiders, confirmed that decisions are taken by Lakwizinn (where the prime minister himself does not figure) rather than by the cabinet of ministers who simply rubberstamp these decisions. He also used the nickname “Lady Macbeth” referring to the wife of the prime minister. What does that imply?
The country has been hearing a lot about “lakwizin” for some time now. Even if some names were a matter of public knowledge, this is the first time that a member of lakwizin has acknowledged the existence of the body and revealed its composition. Many people have heard first-hand accounts of instructions being issued to public officials by persons who do not hold any public office. In some cases, there are accounts of approvals being sought first from outside the institutions legally responsible for giving these approvals. Spin doctoring, which is the forte of the present regime, is also reportedly masterminded by people outside official or party circles. Whether these allegations show that there is a State within a State and that the parallel State is more powerful than the lawful one is something that has still to be determined.

It’s clear that things can’t go back to business as usual now. What do you think will happen?
Each time we thought over the last few years that we had seen the worst scandal, something new crops up that is even more despicable. Never in the history of this country have we witnessed such a scandalridden government. Ironically, the regime has managed to survive partly because each new scandal made people forget about the previous one and the more was the merrier for the regime! But as the saying goes, “You can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time.”

What should the opposition do to properly deal with this se- rious scandal?
The opposition should, as any opposition in any parliamentary democracy anywhere in the world, seek to hold the government accountable to parliament for what it may or may not have done or attempted to do in connection with a possible breach of the law and of a constitutionally protected right. But in my view, it should not stop there. It should alert public opinion to the serious risk of invasion of privacy of every citizen or resident, of threats to our image as a country and to the confidence of our business community and investors in the global business sector in confidentiality of communications.