Presumed Guilty

With new proposed legislations of late, including Constitutional amendment, a strong feeling is gaining ground among thinking Mauritians that a sense of original guilt is being thrust upon every citizen. The proposed legal changes currently under discussion in Parliament convey clearly the message that we as a nation are guilty of having amassed unaccounted-for wealth.

Further, each one of us has to prove in front of an Agency established in the Ministry of Good Governance and Financial Services that he is coming with clean hands, at the risk of seeing one’s property inscribed with a privilege in favour of the government initially, to be followed by forfeiture eventually if it falls in the category of unexplained wealth. By any standards, this is not a flattering image of Mauritius as a nation. It is turning on its head the sacrosanct principle of presumption of innocence all of us enjoy as enshrined in the Constitution.

What is to be gained by so culpabilizing an entire population? To show to the world that we are on the warpath against ill-gotten wealth? At any cost? By throwing away hard-won liberties so as to allow administrative discretion to overtake objective assessment by a dispassionate justice system? This measure comes at a cost, but it will be too late when decent limits would have already been crossed after amending the Constitution and introducing impractical legislations into the system. There will assuredly be unintended negative consequences on the way Mauritius manages itself, if all of this were to go through.

Warnings that we are irretrievably going in this direction have come from overseas. At the sixth meeting of the United Nations Convention against Corruption held in St Petersburg in the Russian Federation from 2nd to 6th November, gathering nearly a thousand delegates from over 160 countries, the Mauritian Minister of Good Governance and Financial Services made a statement on Tuesday last. He referred, amongst others, to people in the upper spheres of power in small island economies who are closely acquainted with each other.

According to press reports, he has stated at that meeting that an amount of over 5 million dollars has been seized by Mauritian police from former Prime Minister Navin Ramgoolam. It is also reported that the Minister would have gone on to state that the Mauritian Director of Public Prosecutions (DPP) is the sole brother of a senior member of the political party (i.e., Dr Arvin Boolell of Labour) to which the former PM belongs.

He would have added that it is the DPP who has the right, according to the Constitution, to decide whether to prosecute or otherwise the former PM in the matter of the money found on him.

Moreover he referred to the case in which the Independent Commission against Corruption (ICAC) is investigating a presumed offence the DPP would himself be involved in (i.e., the Sun Tan affair) but to which the DPP has resisted and asked a court to issue an injunction against the proposed investigation by ICAC against him.

A foreign audience not in the presence of all the facts and unaware of the Constitutional provisions of Mauritius would interpret such a statement as implying that connections in high places allow people having Constitutional responsibilities to arbitrarily overcome due processes of law in this country. This is certainly not helping Mauritius to foster a good image of itself. It throws us in the categories of other corruption-ridden countries we don’t really belong to. Other countries will throw that in our face if we seek to do business with them.

The Minister has the right to believe what he believes in concerning all the people he has fetched in front of that international forum. To be fair however he should have elaborated on our rule of law construct, in which any person, be he ever so high, is allowed to establish his version of the facts on the presumption that he is innocent until proved guilty. Without having to take sides in the matter, we have to state that the DPP had recourse to the court because he has a constitutional right to do so, through our well-established legal system.

It stands to reason that, unless our legal system is amended fundamentally to depart from the presumption of innocence, be it the police or the DPP, you have to adduce strong evidence before a properly constituted court of law in Mauritius to establish that an offence has been committed against the existing body of our laws. It is one aspect of the matter that over 5 million dollars of funds were found with the former PM. It’s quite another matter to establish beyond reasonable doubt before independent judges that there is a criminal source of all this money. The burden of proof for this lies with the police and the DPP who have to make a case cast in iron before the former PM is taken in.

This, the numerous delegates in St Petersburg might or might not be aware of. But it would have been fair to have brought it to their knowledge, so they take cognisance of the fact that accountability before the country’s criminal justice system is a cornerstone of our democracy.

The office of the DPP in all rule of law countries enjoys absolute protection under the Constitution from deciding whether a case has to be prosecuted or doesn’t carry the required evidence before a court to convince it that an offence has been committed. This doesn’t apply only to the present incumbent; it has been the case for all our DPPs. And should continue to be so.

It should stand to reason that a DPP is not persuaded in his decisions to prosecute cases or to drop them by reason of his personal affiliations. He is persuaded to go forward only on the strength of the evidence produced by police in each case that, in the face of the existing body of the country’s laws, the case cannot face defeat before our courts, including the Privy Council which is our final court of appeal.

Coming from a barrister, it is surprising, to say the least, that the Minister has decided to cast the DPP in a personal role concerning the Ramgoolam affair in an international forum.

Was it his intent to suggest that the DPP’s fraternal relations would frustrate the pursuit of justice? If such were indeed the case, this would beg the question: on which element would such an interpretation rest for an office holder who is bound to do his duty without fear, favour, ill-will or affection? Doesn’t such an interpretation reflect an element of prejudice or preconception of guilt he might maintain in his mind, without giving the law courts the chance for them to form their own objective opinion in the light of evidence and existing laws?

In any event, Mauritius would not be the only country of the planet where holders of high office are acquainted with each other or have family relationships. It is common in almost all countries. But what is important is that such relationships do not stand in the way of objective fulfilment of one’s duties with no idea to gratify personal inclinations, or allow room for personal prejudices or conveniences to interfere in public matters. Connectedness among well-placed office holders makes the administrative machinery more efficient, not less, unless it is used to distribute jobs to family and friends at the expense of others. We have to be wary of the latter type.

It is normal that politicians fetch all sorts of arguments to bring down their political adversaries. However, once one is speaking in an international forum, it is critical to project a sound image of one’s jurisdiction.

Mauritius has graduated to where it stands today by dint of hard and unceasing efforts made in this direction by several generations of decision-makers who could easily detach themselves from their personal affections and bring their thinking to loftier levels instead of targeting individuals back home. We will surely not earn the trust of others if we keep painting as black an image of the country as possible.

• Published in print edition on 6 November 2015