The sniffing saga is showing no sign of abating. It is hard to keep up with the revelations and their implications. While we are focused on what the opposition is calling “an act of high treason”, an arguable unconstitutional law about stripping citizens of their nationality is being sneaked into our laws. We approached Senior Counsel and Political Observer Antoine Domingue for his legal views on the situation and his evaluation of how the political situation is likely to evolve.

What are your impressions after the fourth act of Sherry Singh?
We now have much more information than we had before.

More damning information?
I wouldn’t say more damning. I would rather say more info than previously, which seems to lead to the conclusion that the “survey” by the foreign team may have involved the interception of incoming and outgoing data. From what we have been told by the experts, that doesn’t come within the purview of the law. Such tools cannot be brought in or used without the Information and Communication Technologies Authority (ICTA) approval.

But we didn’t see any tools, did we?
We didn’t see the tools but we read about them in the chief technical officer’s (CTO) report to the acting chief executive officer (CEO) of Mauritius Telecom. Quite obviously, the Indian team has been using software and hardware in the form of laptops presumably found in their bags that were carried in and out of the Baie-du-Jacotet station and from what we have been told, it is not possible for one to retrieve data without the required hardware and software. This is what we have been told. We don’t know more. We have all read the CTO’s report to the Ag CEO, which is particularly laconic.

When you say ‘it’s not in the purview of the law’, do you mean it’s illegal?
On the basis of section 46 of the ICTA Act which provides under subsections (m), (n) and (p) that equipment used for the intercept of data should first be approved by the ICTA and such intercepts require a Judge’s Order. That was given as being one of the reasons for the former CEO’s resistance to whatever verbal instructions were conveyed to him.

“It’s obvious that the pm has stationed his cronies and political nominees all over the place…the powers that be are likely to be more repressive. The pm is the one who is responsible for the police force.”

That means to import this software and hardware you need the authorisation of the ICTA and to use it, you need an order from a Judge in Chambers?
That is my understanding of what the law provides.

Are we in a situation where the PM was caught red handed breaking the law?
He says these are not the instructions which he had imparted. He wanted only to carry out a survey. But what is the meaning of a survey? That is the whole point. Their understanding of what such a survey implies does not seem to be the same.

Are you suggesting the PM’s instructions were not followed?
According to his version, his verbal instructions were to let in the team for the purposes of carrying out a survey, in the national interest. That version must be pitched against the exchange of letters between the Prime Minister’s Office (PMO), the CEO’s and the CTO’s report to the present Ag CEO.

So who is lying then?
Who knows? We need to hear from the CTO. We need to hear from the leader of the foreign team. We need to know about his background and the purpose of the whole exercise. There are no specific directions in writing and no terms of reference. We are left to guess. From what we have been told by the CEO and the slides which he has displayed, the first and second intercept failed. The capture of incoming and outgoing data failed twice.

And these attempts were illegal, were they?
Yes. From what the experts have been telling us and my reading of the ICTA Act, you can’t intercept data in that way because it is personal data which belongs to a data subject. Which also brings into play the provisions of the Data Protection Act of 2017. Personal data doesn’t belong to Mauritius Telecom or the PM, so how can you possibly have access to it? To access such personal data, you need equipment which is approved by the regulator and licensing authority that is the ICTA, which has licensed Mauritius Telecom as an internet service provider (ISP) and you also require a Judge’s Order.

We are talking about data not just of citizens of this country, but also communications between embassies and their own countries. How serious is that?
The level of protection is the same for all data subjects. From a data protection perspective, the level of protection afforded to a private individual is no lesser than the one afforded to a foreign diplomat whose sensitive communications are likely to be encrypted. The point is that one cannot intercept and process personal data upon prime ministerial approval. If personal data has indeed been intercepted and abstracted in that way, that would be contrary to s46 of the ICTA Act and contrary to the Data Protection Act also. The Data Protection Act brings into play the Data Protection Office and the Data Protection Commissioner, Mrs Drudreisha Madhub.

Should she have started an inquiry?
Yes. She is a barrister and her independence is guaranteed by law. She is not subject to the control of any person or authority.

According to the PM in parliament, the police are already enquiring so that’s enough. Is it?
I don’t think so. The police enquiry is in relation to the dissemination of false news, criminal defamation and breach of the ICTA Act. Other matters such as whether a personal data breach has occurred are within the purview of the Data Protection Office and the Data Protection Commissioner.

“The present immigration act already provides that someone who has been registered may be stripped of his/her citizenship. But without any reason being provided is a novelty. That does not seem to be consistent with the constitution.”

It is clear that the PM will not agree to any inquiry except one by the police. So if he maintains that line, where is that going to lead?
Given the present stand of the PM, a Commission of Inquiry and a Select Committee are out of the question. We are therefore left with an independent inquiry by the Data Protection Office to determine whether a personal data breach has occurred. L

While this is going on, it seems the PM is more interested in giving himself even more powers through amendments to the immigration bill comes to mind. What do you think of that bill?
The bill consolidates all the amendments since 1970.

But it also gives the PM absolute powers to strip a national of their nationality without having to give a reason and that person has no legal redress?
That is the part which has caused a hue and cry. That provision appears to be inconsistent with the constitution. The present Immigration Act already provides that someone who has been registered may be stripped of his/her citizen-ship. But without any reason being provided is a novelty. That does not seem to be consistent with the constitution. There is also the additional concern that the registered citizen may thereby be rendered stateless. Deprivation of citizenship acquired by registration or naturalization is provided for under section 11 of the Mauritius Citizenship Act with the caveat that the person should not thereby be rendered stateless.

You seem to be talking about it as if it is a minor change.
It’s not. It’s quite obviously a major change.

Then what happens if what seems to be an unconstitutional law goes through parliament? You know how things have been happening in parliament recently, don’t you?
Any aggrieved party may apply to the Supreme Court for that provision to be invalidated to the extent that it is inconsistent with the constitution. There is a time bar. Such an application should be made within three months. But, on occasion arising, nothing prevents the Supreme Court from declaring the provision ultra vires the constitution.

As happened in the case of Seegum vs the State?
Yes. SCJ 162 section 46(h)(ii) of the ICTA (the “causing annoyance” provision) was on the Statute Book for quite some time before it was repealed and eventually struck down by the Supreme Court as being too vague.

Coming back to the sniffing saga, when you look at all these revelations, what do you think is likely to happen? We know there is a lot of anger and frustration but most of the institutions are headed by political nominees carefully chosen by the PM. So, are we heading for some deadlock that is likely to create tension and unrest?
The frustration has already been voiced out. A lady minister (Mrs KoonjooSha) has recently been heckled in public. Such public outbursts are reminiscent of the atmosphere which pre-vailed from 1980 to 1982, just before the first 60-0. The powers that be are likely to be more repressive. The PM is the one who is responsible for the Police Force.

Do you agree with some opinion leaders that not only the police but every institution outside the judiciary and the office of the DPP is controlled by people who are willing to do everything at the order of the PM?
It’s obvious that he has stationed his cronies and political nominees all over the place.

What will happen now?
Given the present situation, the socio-economic climate is likely to deteriorate if there is further abuse of power and if the parliamentary opposition is prevented from expressing itself and the leader of the opposition’s microphone is switched off by the speaker to suppress further Private Notice Questions. The only recourse are the Data Protection Office and the Data Protection Commissioner.