Clouds of Meaningless Legal Dust around the DPP’s Office

The Cabinet decided last week that the Office of the Director of Public Prosecutions (DPP) should come under the purview of the Attorney General (AG).

The decision provoked a generalized public ire inasmuch as it was interpreted to suggest that the AG, a political appointee, would have an upper hand on the holder of an autonomous Constitutional post, the DPP. Sometime earlier, against the backdrop of a very controversial erstwhile decision taken by an incumbent of the DPP’s Office, the public had felt relieved that, without having the legal obligation to do so, the current incumbent had decided to publicly explain some of his decisions to prosecute or not to prosecute cases.

Some members of the legal profession asked for an extraordinary meeting of the Bar Council to be called to take stock of the implications of this Cabinet decision. A sentiment was catching up in the public that the decision could amount to tampering with the independence of the Office of the DPP as secured under section 76 of the Constitution.

The DPP himself made a public statement on radio, stating his intention to contest the decision in court if need be. On the basis that the Constitution provides for the absolute independence of the DPP, the latter appeared to be irritated enough to qualify the decision as being unfit for a self-respecting Republic.

Mauritius has thus, wittingly or not, been caught up in one more unnecessary public controversy.

As events unfolded, some members of the government made public statements in a bid to justify the decision. At first, their explanation was that it was intended to make the DPP financially accountable within the budgetary confines of the AG’s Office. Statements were also subsequently made to the effect that the DPP himself and members of his office would have preferred to occupy Board positions in certain parastatal bodies for remuneration rather than accepting to be promoted to higher positions in the judiciary in the ordinary course of business. The insinuation was that the preference would be out of pecuniary considerations. It was not difficult to make out that the DPP himself was being targeted.

The same persons insisted that, notwithstanding, it was not intended to curtail the DDP’s Constitutional freedom as provided for in section 76 of the Constitution. In other words, the decision of the Cabinet should not be interpreted to mean that there would be political interference to dictate the stand that the DPP should adopt in cases coming to him.

In the course of further radio interviews, some of the members of the government stated that, while there was an intention to put under stronger scrutiny the expenditures incurred by the DPP’s Office by putting it under the AG’s umbrella, there were concerns also about his decisions taken/not taken as DPP in certain high-profile cases. At this point, it was difficult not to infer that while finances may have been a consideration behind the Cabinet decision, there was more to it than what was being officially averred.

It may be recalled that one of the reasons for voters shifting their allegiance in favour of the current alliance in power was the desire to see the elimination of wasteful public expenditures – an eminently good objective. One would have thought that there are enough public institutions of oversight (the Committee of Supplies, the Director of Audit, the Public Accounts Committee, rules made by the Ministry of Finance for incurring expenditures in the public sector) to rein in any perceived excessive expenditures in the public sector by whomsoever. If this is not deemed sufficient, even a Parliamentary Committee having specific oversight on financial management by members of the Judicature as a whole — not the DPP alone — could additionally have been instituted for this purpose. That would have avoided the current perception that it was solely the DPP who was being targeted.

The Cabinet decision creates the impression however, even from the purely financial control angle contemplated over the DPP’s office, that the DPP could be prevented from taking an autonomous course of action. That could be achieved by the AG simply denying him the financial resources for so doing on the mere grounds that funds would not be available. Suppose he wanted to go on appeal against a decision the government – as a political entity – was supportive of, and no financial resources were made available for him to do so, he would have no option but to do only as much as the AG loosened the purse strings for. Possible situations like this would strongly plead, on the contrary, in favour of budgetary autonomy for the DPP within the confines of objective rules of good governance.

We have to bear in mind that the last elections were lost and won due to serious apprehension in the public about the extent to which holders of power would make themselves accountable. People were looking out for a much higher dose of transparency underlying the motives behind public-decision taking and they voted accordingly. Their votes were an apprehension about inroads that could have been made and immunities secured against prosecution, which could have put in jeopardy the strict separation of the powers of the Legislature, the Executive and the Judicature as provided for in the Constitution.

One of the triumphs of Mauritius as a nation has been its Constitutional setup. This is strong enough to crush the exaggerated personal egos of many a plenipotentiary, irrespective of whether he hails from the political, executive or judicial arms of the country’s main pillars of public governance. No one should escape the test of accountability whether or not s/he is vested with autonomous powers. This means the DPP is ever liable to scrutiny for his acts – and omissions, if any -, and putting him under the responsibility of the AG or not will not free him from such an obligation. People can always have recourse to our courts if they feel that the DPP has taken a course of action which is questionable.

We have seen that interference with holders of public office tends to intimidate them from doing their duties as they should. Successors in office are thereby warned by such interferences that they must not displease the powers that be. The serenity and objectivity with which public institutions and public office should be carried is thereby disrupted.

Whenever short-term gains of this type have dominated the public discourse, it is the country which has suffered and its image that has been tainted. We have so much other work to do. Why don’t we focus on them, for the good of the country, instead of raising clouds of meaningless legal dust from time to time?

 

* Published in print edition on 6  March  2015

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