The agitation and suspicion around the Financial Crimes Commission are still making news and are the subject of public debate. We talk to Antoine Domingue about this law as well as other laws introduced by the government in the last years. And we seek his views on the political situation in general.

Let’s start this interview with the last Bill – controversial as it happens – introduced in the National Assembly at the end of last year: The Financial Crimes Commission. Many lawyers and citizens have expressed their worry about its implications while the government’s spin is: ‘If you have done nothing wrong, you have nothing to fear’. Where do you stand in this polemic?

I take note of the policy which underpins this consolidating enactment which on grounds of administrative efficiency has brought various law enforcement agencies and a financial intelligence unit under one roof. But I am strongly opposed to the intrusive investigatory and prosecutorial powers which shall be vested by the prime minister in the hands of political appointees who are not constitutionally insulated from the sphere of political influence. The Director of Public Prosecutions (DPP) may undoubtedly have ground for complaint. And any party aggrieved by the decision and the decision making process of the Financial Crimes Commission may, on occasion arising, also have ground for complaint.

And it looks as if the DPP might do so. In the last communiqué issued by his office recently, he subtly suggested that he might challenge the law. But won’t the case take years and a lot of harm will have been caused in the meantime?

If the DPP is so minded, he is obliged to file his application for constitutional relief within three months of the law coming into force. In view of these statutory time constraints, an early trial of the application will be granted as a matter of course as this is a matter which undoubtedly raises questions of law of great general and public importance. Just to make the point and enlighten your readers: at the end of last year, in Minister of Environment & ors v Eco-Sud & ors, which also raises questions of law of great general and public importance, the Judicial Committee has granted special leave to appeal and the appeal has immediately been set down for hearing on 5 March 2024.

The implications of such a law are huge, aren’t they? When you think that a political nominee can just decide to spy on you without a judge’s order, arrest you, decide when and if to release you on bail, investigate and imprison you. How come the population is reacting in such a docile way?

The same may be said about the postponement of the municipal elections whereby a substantial part of the electorate has been disenfranchised. It did not elicit much of a reaction from the electorate and this has wetted the appetite of the government of the day. The present legislation has now sought to introduce the aborted Prosecution Commission by the back door, albeit for specified offences. And, further, it purports to divest Angus Road and the Stag Party from the hands of the DPP and vest the decision and decision making process entirely in the hands of a commission made up entirely of politically exposed persons who are bound to listen to their masters’ voice. Is this consistent with a constitution such as ours, which seeks to insulate such persons and authorities from the sphere of political influence?

No, but when you look back on the Bills introduced by this government, from the Hofman law to the Immigration Act 2020, through the ICT Act etc., you get the impression that the only worry of the prime minister is to hog more powers and annihilate the checks and balances. Is this a wrong impression?

This is an impression which applies not only to the present prime minister but also to the whole of the Cabinet. I am drawn to the conclusion that under the MSM rule, tyranny has become law when the ultimate aim of the law is not to abolish or restrain, but to preserve and enlarge freedom.

Haven’t there been laws legislated during this government tenure which have enlarged freedom in some way?

This government does not have much to commend itself save and except for some purely opportunistic labour legislation. We are still earnestly awaiting the introduction of a Freedom of Information Bill. As Président Georges Pompidou observed in his philosophical essay styled as Le Noeud Gordien : “Les programmes tout le monde en a et chacun sait ce qu’il en advient ».

The laws we are talking about are all rushed through Parliament in dizzying speed. Is there a reason for that?

There is not only the indecent haste with which such legislation has been rushed through so as to stifle debate and criticism but also the timing: just before the end of the year festivities and accompanied by a cohort of opportunistic measures meant to sweeten the pill.

Why this rush? Do you think the FCC is targeting some opposition members?

I cannot surmise and I do not wish to indulge in crystal gazing. Judging from past experience junior ministers and deputy prime ministers are not exempted and may well come under the axe. One of our foreign diplomats has quite rightly observed that it is the first time that a government has voted an exceptional law against itself.

How can it be against itself if. The person in charge is likely to be a stooge appointed by the prime minister so what does he have to fear?

What about the former deputy prime minister in the St Louis Gate affair and the former junior minister, Dahlia, in the Stag Party with the minister of foreign affairs Gobin? Does the consolidating enactment target the ordinary man on the Clapham omnibus or does it apply to public officials and Politically Exposed Persons (PEPs)? The Act overtly targets those who fall within these two categories. But, covertly, it is inconsistent with the DPP’s constitutional power under s.72(3)(a) of the constitution in any case in which he considers it desirable to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law).

Where is the Bar Council in all this?

As the governing body of the Bar, the Bar Council has played its part within its statutory remit by engaging with the attorney general. It cannot involve itself in political controversy and it cannot control the legislative agenda of the government of the day. The constitutionality of laws which are inconsistent with the constitution cannot be challenged by the Bar Council. This may only be undertaken before the Supreme Court by one or more aggrieved parties with the assistance of the members of the Independent Bar.

Apart from the laws enacted to restrict the freedoms of citizens, isn’t this government also responsible for a huge waste of public funds if you look at Betamax (over Rs6 billion), Neotown (Rs1.9 billion), British American Investment is on its way…

You may also throw in the fairly recent decision of the Privy Council in District Council of Rivière du Rempart v Alphamix.

Can you remind us of what happened in that case?

On 26 April 2023, the respondent district council was ordered by the Privy Council to pay some half a billion rupees as compound interest to a contractor following a breach of contract and the arbitrator’s award was made executory.

Regrettably, there is a lack of accountability when it comes to the gross mismanagement of public funds which no longer run into the thousands or millions, but into the billions. This is a matter which requires the immediate attention of the Ministry of Finance and of its minister.

What aftertaste did the previous year leave in your mouth?

The aftertaste that the population has been struggling to make both ends meet and that the inflationary pressures due to the depreciation of the rupee and a policy of undue reliance on imports has taken its toll. This has been acknowledged by the unilateral reduction of the cost of fuel and it has also triggered a further revised minimum wage. The economic prognosis for 2024 and beyond looks quite dim.

Is this year going to be election year in your opinion?

It may well be. The life of the present legislature will come to a grinding halt at the end of 2024 and cannot be further extended as has been sought to be done in the case of the Municipal Councils and which had triggered a constitutional challenge which has already been heard but has not yet been determined by the Supreme Court.

When do you think the Supreme Court will give its ruling?

We may reasonably expect a judgment to be handed down fairly soon. Whichever way the decision goes, it will inevitably weigh very heavily in the balance and it may very well dictate the political agenda.

How is the situation on the ground? MSM and its allies, The LP/ MMM/PMSD, Nando Bhoda/Rama Valayden, En avant Maurice, the Reform Party…

After two successive terms of the MSM in office, the electorate has finally now come round to recognise that the choice is between the MSM & Co and the Alliance de L’Espoir and, further, that from now on until May 2025, there is no other alternative worthy of serious consideration.

Why do you call it l’Alliance de l’Espoir? The Labour Party/ MMM/PMSD haven’t named their alliance yet, have they?

L’Alliance de L’Espoir for me refers to the LP/MMM/ PMSD alliance.

No problem if it gives you hope…

I continue to refer to it as l’Alliance de L’Espoir. I make de Gaulle my own : «Vieil homme, recru d’épreuves, détaché des entreprises, sentant venir le froid éternel, mais jamais las de guetter dans l’ombre la lueur de l’espérance !»

Whatever name you give the alliance, which horse are you betting on?

It would be suicidal for me to back any of the four slow horses which you have mentioned. Between now and May 2025, the race will be run between the MSM and the Alliance de L’Espoir. The latter has already taken the lead.

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