Liberty versus Status

The more our institutions are empowered to state facts without fear or favour in a bid to enlighten the public, the more justice will be done to our intrinsically democratic setup

This is the title of a contribution made by the Director of Public Prosecutions (DPP) in the October 2014 issue of the Newsletter of the Office of the Director of Public Prosecutions (Newsletter). In it, the DPP has thrown light on the legal interpretation of section 30A of the Constitution of Mauritius against the background of the Kenyan President’s decision to face charges levied against him in the International Criminal Court.

His settled opinion is that this section of our Constitution in its entirety gives absolute immunity to the President of the Republic against any lawsuit, whether in civil or criminal proceedings arising out of the functions of his office.

He writes: “Section 30A of the Constitution… gives absolute immunity to the President from civil and criminal proceedings arising out of the performance of the functions of his office. Sub-section (2) goes a step further by providing that no process, warrant or summons shall be issued or executed against the President during his term of office. The combined effect of the two limbs of section 30A not only offers him absolute immunity from court process but also makes him non compellable as a witness in any legal proceedings.”

It is open to anybody not agreeing with this interpretation of our constitutional provisions to challenge the opinion. In his contribution to the Newsletter, the DPP has supported his argument by reference to case law in which the immunity conferred upon the President was challenged in court.

Specifically, he refers to a case brought before CJ Pillay in the Supreme Court in 1998 by JR Dayal. The Court distinguished between cases where the President acts in his own deliberate judgement (protected by the immunity provisions) and those in which he acts upon advice (in which case the decisions of the President are amenable to judicial review). CJ Pillay was referring in the latter case to acts which are ostensibly performed by the President but which in reality are performed by some other person or authority.

The other case referred to by the DPP in his contribution relates to a case brought by Navinchandra Ramgoolam v Sir Anerood Jugnauth QC and Ors in 2006, asking the Court to decline immunity to the President in a case involving defamation, citing an example from the US Supreme Court which had declined immunity to President Clinton of the US based on the universal principle of rule of law whereby “no person, even a president, is above the law”. The Mauritian Court rejected the plea on the grounds that section 30A of the Mauritian Constitution “finds no counterpart in the US Constitution”.

The conclusion is that as constitutional provisions stand at present in our case, the President’s immunity status takes precedence over the rights of parties which feel aggrieved by the President’s acts and decision(s). Citing the ongoing case in which the Kenyan president has submitted himself to answer a charge of crime against humanity before the International Criminal Court, he goes on to suggest considering whether it would not be apt to give some careful thought to the continued maintenance of section 30A of our Constitution as it is.

The question of the immunity enjoyed by the President was recently publicly advertised in other forums.

Barrister Ivan Collendavelloo who broke away from the MMM party when the latter decided to ally with the Labour Party, becoming the leader in consequence of the newly formed political party Muvman Liberater, expressed strong objections. He questioned the range of immunities from civil and criminal proceedings enjoyed by the President in the context of the extensive powers sought to be conferred on the holder of this office under the proposed “2nd Republic”, the more so as it was proposed to increase the term of office of the President to 7 years.

Others, including barrister Raouf Gulbul, who joined the Alliance Lepep in the last week, has independently been expressing for some time now his reservations about the range of immunities enjoyed by the President, it being given the extent of executive powers proposed to be vested in him if the Labour Party-MMM alliance were to secure a three-quarter majority in the House and amend the Constitution to give the President additional powers as contemplated by this alliance. He was among those who suggested that the proposed Constitutional amendment for establishing what has been called the ‘Second Republic’ risks being challenged in court and, if necessary in the Privy Council, as being contrary to Constitutional provisions.

The MMM leader came out last week with strong words, possibly a threat, against the views expressed in the October Newsletter by the DPP, claiming that the immunities of the President have been here from the past and are nothing new. He has warned that he is keeping under scrutiny the pronouncements of the DPP on the matter. Does this amount to imputing political motives to what is in reality a candid analysis of the facts as they stand and as they have stood the tests of our law courts in the matter of Presidential immunity from lawsuits? Does this amount to denying any proposal from the DPP to reconsider existing provisions in the Constitution in the light of new developments taking place internationally?

We think that debate should be permitted on issues of public concern. We also hold that the DPP is entitled to state his views, not only on this matter but on others as well, especially so if they are in the ‘public interest’. The more our institutions are empowered to state facts without fear or favour in a bid to enlighten the public, the more justice will be done to our intrinsically democratic setup. It would be counter-productive to suggest that the DPP should shelve away his views on matters of public interest if they happened to be interpreted by some political parties as being politically inconvenient.

It is a matter of comfort that the present DPP has decided since after assuming office to come out more publicly than his predecessors to explain away decisions that may not be immediately obvious to the public. It is in everybody’s interest that this culture of transparency and engaging publicly is not sacrificed at some political altar.

* Published in print edition on 21 November 2014

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