Nuances….

The DPP is part of the executive, yes, but let it be remembered that we are here talking of the non-political executive

“You suggest in your book that the DPP is part of the executive. Some people still think that the DPP is part of the judicial system. Can you shed some light on that?

I think very often there is some confusion on this. There was a Privy Council case where it was said that the DPP was part of the executive. When the Privy Council said that, it was in relation to a particular issue. Though our judges had said from time to time that there should be some kind of review, the general rule was that decisions of the DPP were not subject to judicial review. So, it is in this context that the Privy Council pointed out that he is part of the executive and, as such, his decisions are amenable to review. ”

— Newspaper extract

As I read the interview of Milan Meetarbhan, barrister and author of “Constitutional Law of Mauritius” in L’Express (4 September 2017), I tell myself that there is one “nuance” that we often fail to make or acknowledge, and it is as follows.

The DPP is part of the executive, and not the judiciary. Nobody doubts, or disputes this proposition. If there was any doubt, this was put to rest by the Judicial Committee of the Privy Council in its decision of Mohit v DPP [2006 UK PC 20]. The Board reviewed provisions similar to section72 of the Mauritian Constitution from several Commonwealth States like Fiji, Guyana, Barbados and Jamaica, and came to the conclusion that the decisions taken by a DPP are amenable to judicial review.

But this is only one side of the coin. It should not obliviate the fact that our Constitution splits executive powers between the political Executive (answerable to Parliament) and the non-political Executive (not answerable to Parliament). The latter category comprises the Public Service Commission, the Disciplined Forces Service Commission, Electoral Supervisory Commission, the Director of Public Prosecutions, etc. None of these institutions are answerable to Parliament (although they are accountable on budgetary matters and answerable to the public through the court system and judicial review applications).

This dichotomy between the political and the non-political Executive was pronounced upon as far back as 1994 by a Full Bench of the Supreme Court led by late Hon. Rajsoomer Lallah, then CJ, and one of our leading judges on constitutional matters :

“A distinguishing feature of our Constitution, like that of some of the new Commonwealth countries, is the splitting of executive functions between what one might call the political Executive which remains answerable to Parliament and an independent non-political Executive, in specific matters, consisting of among others the Director of Public Prosecutions… which are not answerable to Parliament. The purpose of this device is, institutionally, to insulate certain areas in the conduct of public affairs from political responsibility and control, thus ensuring their autonomy and independence . ” (Edath-Ally v Glover [1994 SCJ 409]).

It flows naturally from this state of affairs that there ought to be no political contamination of these institutions, so as to ensure their autonomy and independence.

This is also why the Mauritian DPP cannot be compared to his counterpart in the UK. The UK Attorney General oversees the DPP’s duties. In Mauritius, the DPP is independent. He acts himself, or through his officers to whom he delegates his powers – Section 72(4) of the Constitution. He is not subject to the direction or control of any other person or authority in the exercise of the powers given to him by Section 72.

He is part of the executive, yes, but let it be remembered that we are here talking of the non-political executive.

A nuance worth making…

Source: ODPP’s e-Newsletter, August 2017

• Published in print edition on 8 September 2017