“Scrap the FCC Act and restore the DPP’s powers”

Interview: Sanjay Bhuckory, SC

‘We cannot create a parallel criminal system for financial crimes, which escapes the DPP’s control. This is a fertile breeding ground for political interference’

* Arrest of Navin Ramgoolam: ‘ It would be preposterous for the FCC to re-arrest someone nearly ten years after the alleged acts’

* ‘The term “colourable device”, used by late Chief Justice Lallah is too mild to describe the sombre situation we are now facing. I would prefer “cover-up device”‘

In recent weeks, Mauritius has been abuzz with speculation regarding potential legal actions against political figures, particularly the Leader of the Labour Party, Dr Navin Ramgoolam, by the Financial Crimes Commission (FCC). The FCC’s Director General, Navin Beekarry, has categorically dismissed these speculations, asserting that such claims are baseless and far from the mandate of the FCC. However, amidst these discussions lies a broader concern about the FCC’s role and independence in high-profile cases, especially with political implications. To delve deeper into these pressing issues, Sanjay Bhuckory, SC, who brings extensive experience in constitutional matters, shares his insights on these matters, including the cases involving the Director of Public Prosecutions (DPP) against the Financial Crimes Commission (FCC) and the Commissioner of Police.

Mauritius Times: There were speculations in recent weeks about an imminent arrest of the Labour Party’s leader by the FCC in relation to an “Unexplained Wealth Order” of the earlier Integrity Reporting Services Agency. The DG of the Financial Crimes Commission (FCC), Navin Beekarry, has responded to the speculations, saying that “the suggestion that the FCC was created to arrest Dr Navin Ramgoolam is completely ridiculous and false”. Aside from the political implications of such a decision, would it be correct to say that the FCC would be fully entitled to pursue that course of action if there is sufficient evidence or a legal basis to justify it?

Sanjay Bhuckory: I strongly disagree. It would be preposterous for the FCC to re-arrest someone nearly ten years after the alleged acts. Worse still, the politically controlled FCC has now absorbed the independent Integrity Reporting Services Authority (IRSA), which was headed by no lesser than a former UK Chief Justice. The FCC Act, which was passed with a simple majority, cannot overnight be utilised to the detriment of a suspect’s constitutional rights.

In fact, Dr Ramgoolam is challenging the constitutionality of two sections of the FCC Act before the Supreme Court: firstly, section 112(4), arguing that it places the burden on him, rather than the prosecution, to prove that his property is not unexplained wealth; and secondly, section 117(1), asserting that he cannot be unfairly deprived of his property through a confiscation order for unexplained wealth.

It is comforting to know that the Director General of the FCC has given the assurance that he will not arrest Dr Ramgoolam. Hopefully, he will, in the same breath, freeze all legal actions against the latter, pending the determination of the constitutional plaint.

* However, the timing of such a decision in the lead-up to the next elections, should the FCC pursue that course of action, could lend credibility to the perception that the FCC is being weaponised to target political opponents, particularly the main challenger to the current Prime Minister. This situation could be seen as another ‘colourable device,’ a term used by the late Chief Justice Rajsoomer Lallah in another case involving Navin Ramgoolam. What are your thoughts on this?

Recent events in India and the USA have sent strong signals to ruling parties across the world that prosecuting, not to say persecuting, political opponents on the eve of national elections may well backfire. Closer to home, the FCC and the Police are increasingly being perceived as having been weaponised to target political opponents. This is so because media reports are abundant with instances where the speed and outcome of FCC or Police inquiries appear to vary based on the individuals’ proximity to power.

This weaponisation perception has, through the adoption of the FCC Act, become a reality because, contrary to the then ICAC, the FCC is now under no obligation to submit a comprehensive report of all its enquiries to the DPP. Thus, the DPP will henceforth be kept in the dark as to the outcome of the FCC’s enquiries, thus depriving him of the power to decide whether to institute criminal proceedings or not.

The term “colourable device”, used by late Chief Justice Lallah is, I am afraid, too mild to describe the sombre situation we are now facing. I would prefer “cover-up device”.

* In any case, how the FCC prioritises urgency in its investigations can indicate how it maintains its independence from political influences, particularly in high-profile cases. Unfortunately, the Parliamentary Committee may not provide much assistance in this regard. What are your reflections on this?

Far from gaining the trust and confidence of the people of this country, which the ICAC had already lost, the situation has worsened with the accrued powers vested in the FCC. There is only one way to redress the situation: scrap the FCC Act and restore the DPP’s powers. He alone is empowered, under the Constitution, to be at the apex of the criminal procedural system in Mauritius. We cannot create a parallel criminal system for financial crimes, which escapes the DPP’s control. This is a fertile breeding ground for political interference, delaying tactics and cover-ups.

The Parliamentary Committee has no say in investigatory matters, leave alone in querying the Director General about any ongoing or shelved enquiry. In these circumstances, the Committee has no means of safeguarding the FCC’s independence from any form of interference.

* There are also the current DPP, Rashid Ahmine, as well as his predecessor, Satyajit Boolell, who have both challenged the constitutionality of the FCC Act. In your view, how does challenging the FCC Act serve the public interest and the integrity of the legal system?

I am one of the counsels representing both the current and former DPP. In the case of the incumbent DPP, his challenge is based on two main grounds. Firstly, the FCC’s decision to discontinue an investigation concerning an alleged offender, coupled with the FCC no longer being legally required to report its decisions to the DPP, deprives the DPP of the opportunity to exercise his authority under section 72(3)(a) of the Constitution to initiate criminal proceedings against an offender. This also undermines his authority to terminate proceedings under section 72(3)(c).

The DPP’s second ground of challenge is that the FCC’s decision to compound an offence under section 150 of the Act impacts his constitutional powers to initiate and terminate proceedings. Once an Agreement to Compound is reached between the FCC and an alleged offender behind the back of the DPP, the criminal process comes to an abrupt end. This prevents prosecution of the individual and thus deprives the DPP of the ability to exercise his authority under section 72(3)(a) of the Constitution to initiate criminal proceedings against the alleged offender, as well as his power to discontinue proceedings under section 72(3)(c) of the Constitution.

Regarding Mr Boolell’s challenge, he argues that under the repealed Prevention of Corruption Act of 2002 (POCA), the ICAC was under an obligation to consult the DPP, who had the sole mandate to independently review the case file and advise on further investigation, prosecution, or discontinuance of proceedings. The FCC Act has now removed this safeguard, depriving him of the protection of having an independent review of his case file by an independent constitutional body, the DPP. Therefore, under the FCC Act, although an investigation may be initiated by the ICAC, he will no longer benefit from the additional layer of legal protection ensuring that, upon completion of the investigation, a report is sent to the DPP for advice on prosecution or other actions.

The Chief Justice is fast-tracking these two cases also, meaning to say that they should hopefully be heard before the end of the year. Pending the hearing of the DPP’s case, there is no reason why the working relationship between the FCC and the Office of the DPP should suffer in any manner. Their common aim, after all, is to combat financial crimes. However, how can the DPP be expected to exercise his constitutional power if the FCC does not even send a report of its inquiries to him for his vetting in the first place? As long as the FCC Act remains in place, trust in the system will continue to erode.

* Rajen Valayden has applied for leave to appeal to the Privy Council, challenging the Supreme Court’s decision to set aside his constitutional plaint regarding the 2023 amendment to the Local Government Act, which postponed municipal elections. How does this case relate to the broader context of local governance and electoral processes in the country?

Mr Rajen Valayden, of whom I am one of the counsels, is challenging the constitutionality of the 2023 law that postponed municipal elections for a period of two years. His main argument is that Section 1 of the Constitution guarantees periodic and fair elections at both local and national levels, and that this guarantee can only be interfered with in exceptional circumstances.

Contrary to what has been asserted, he was not asking the court to interpret such a right into section 1 of the Constitution, thereby making it a constitutional right. Nor was he suggesting that he has a constitutional right to vote in local elections. Instead, he was arguing that holding free and fair local elections periodically is a fundamental structural element of section 1 — meaning that it has a constitutional foundation, drawing on the Privy Council case of Maharaj v. Attorney General of Trinidad & Tobago.

Furthermore, he does not dispute that local elections may be postponed. He agrees that this may be so, provided certain strict criteria are fulfilled in the making of such law, namely that it must be expressed in clear and unambiguous terms, the grounds for postponement must be established by law, the grounds must be objective and reasonable, and the period of an extension must not be unreasonable.

Mr Valayden’s standpoint is that the above conditions were not met in the amending law, thus falling short of the democratic component under section 1 of the Constitution – the moreso since they are in breach of theInternationalCovenant on Civil and Political Rights,of which Mauritius is a signatory, and which provides for genuine periodic elections.

Lastly, Mr Valayden referred to the Prime Minister’s speech during the parliamentary debates on the amendment Bill, where the Prime Minister clearly recognized the importance of local elections as the grassroots of democracy and their impact on the state’s performance.

* What potential consequences could the outcome of this appeal have on future amendments to the Local Government Act? Additionally, what are the possible outcomes of this appeal, and how might each affect the political landscape?

Assuming leave is granted, the whole political class, not to say the whole country, will await with eagerness the Privy Council’s views on the matter. Once for all, we need to know whether, in a democratic State, local elections may be postponed without any reason being specified in the law, as it has invariably been the case in the past, save for the 2021 postponement on account of the Covid pandemic; or whether reasons need to be inscribed in the amending law, and if so, what types of reasons. This becomes even morerelevant in light of the Privy Council’s pronouncements in the tworecent Trinidadian cases of Maharaj on the subject.

The first possible outcome is that the Privy Council rules that the amending law was unconstitutional, in that no reason was provided therein. Government will then have to hold local elections, or else postpone them by providing cogent grounds in the law, which grounds should be objectively verifiable before a court of law. The second outcome is that the judgment of the Supreme Court is affirmed, meaning that local elections, which have already been postponed for an aggregate period of 4 years over a spent period of 6 years, may again be postponed ad infinitum without any reason.

* Regarding the case of the Commissioner of Police (CP) against the DPP, which challenges the DPP’s powers in pre-trial matters as unconstitutional, what would be the implications for the DPP’s prosecutorial authority if the Court were to decide in favour of the Commissioner of Police?

The CP’s case is that only he and his officers, and not the DPP, “have decision-making powers regarding investigations by the Police, and connected matters such as provisional charges, bail matters and objections to departure”. The CP has therefore sought a declaration from the Supreme Court that “criminal proceedings, for the purposes of section 72 of the Constitution, do not include matters such as provisional charges, bail, and prohibitions against departure”.

The DPP, for whom I am acting as one of his counsels, has averred that his powers under section 72(3)(a) of the Constitution “to institute criminal proceedings before any court of law” include all supervisory and decisional powers in relation to provisional charges, bail matters and objections to departure.

The CP has also sought a declaration that the DPP has, by his acts and doings and those acting under his authority, usurped his powers under section 71 of the Constitution as regards investigation-related matters. The DPP has denied that section 71(4) of the Constitution, which pertains to ‘the exercise of the Commissioner of Police’s responsibilities and powers concerning the use and operational control of the force,’ relates to investigation-related matters. The DPP further stated that the Commissioner of Police’s powers are governed by the Police Act, which cannot be imported into section 71 of the Constitution.

The DPP’s stand is that the CP has resorted to the cases of Laurette, Bissessur, Dabeedin and Singh because of their political coloration – hence his alleged qualms.

The Supreme Court’s decision is of crucial importance, as the DPP’s case is that the delimitation between the powers of the CP and the DPP, which suffered from no controversy prior to the incumbent CP taking office, has been deliberately blurred by the latter. Should the Supreme Court decide in favour of the CP, the question will inevitably arise as to whether the DPP should appeal to the Privy Council, because of the far-reaching implications of such a judgment, which will cripple his powers and bring his Office to a standstill.

* We spoke earlier about late Rajsoomer Lallah’s remarks on “colourable devices”, which reflected his concerns about actions that, while technically legal, could appear politically motivated. Looking back on the judgments of the Supreme Court in cases related to election petitions, as well as the time taken to rule on challenges to the Speaker’s decisions, how would you compare the current judiciary to earlier benches composed of justices like Rajsoomer Lallah and his peers in terms of maintaining integrity in legal proceedings?

The present Chief Justice has endeavoured to expedite certain constitutional matters. Speaking from my own experience, the case of Valayden v. The Statewas heard within a record time of 5 months, and the judgment was delivered 7 months after the hearing, amounting toan aggregate of one year. Likewise, the case of CP v. DPP is being fast-tracked, despite the difficulty of finding common dates with the three British KC’s appearing in the respective legal teams.

I will reiterate what I wrote in an Open Letter to the Chief Justice upon her appointment: it is high time that a constitutional court be created, which will be dedicated to processing and hearing such cases in utmost priority. In the same breath, an election court should also be set up to deal with election petitions. The case of Ringadoo v. Jugnauth in which I appeared for the petitioner, both here and before the Privy Council, took a total of 3 years to be resolved. Although we were successful, the time taken to achieve this result is unacceptable.

Our current crop of judges should keep inspiring themselves from their illustrious predecessors. As I like to say: “The future of the law lies in its past”. Recently, Supreme Court judges Hamuth-Lauloo and Naidoo in the case of Eco-Sud v. Ministry of Environment, in which I was one of the counsels, took a bold and liberal view of the ‘locus standi’test of those entitled to appeal to the Environment & Land Use Appeal Tribunal against the granting of an EIA licence by the Minister. Their judgment, which marked a significant breakthrough, was upheld on appeal by the Privy Council, which cited their reasoning with approval. This is a great source of pride for our Judiciary. As the saying goes: “Where there is a will there is a way”.

Mauritius Times ePaper Friday 19 July 2024