‘The classical definition of democracy is government of the people, by the people, for the people. In a democracy, everyone is equal before the law…’
“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”
― Thomas Paine
The classical definition of democracy is government of the people, by the people, for the people. In a democracy, everyone is equal before the law. Every citizen has rights he can enjoy unfettered. But along with these rights, everyone has obligations to abide by the rule of law. By deduction, everyone — as high as he might be — is accountable for his actions. Transparency is fundamental if the people are to have trust in the institutions making the decisions on their behalf.
In Mauritius we have two exceptions that depart from these basic principles. Because ever since Independence our Constitution allows for the absolute independence of the Director of Public Prosecutions (DPP) and the Commissioner of Police (CP). These two institutions are unique in that they are not accountable to anybody for their decisions. Therefore they do not have to give any explanation to anybody for their decisions.
Now it may be that, when the Constitution was being drafted, this suited the social situation of the times. In drafting the Constitution, the authors had to reconcile the demands and quell the anxiety of the various interests represented by the opposing political factions at the Lancaster Conference 1965.
But that was half a century ago. As someone has wisely observed, the only constant in life is change. And boy have we seen some changes in all spheres of our lives since Independence? The social situation, including security issues, has long changed beyond recognition since the dark, unenlightened 1960s. In contrast with the uneducated masses of the time, today we have a highly educated, reflective generation connected to the world at large through advanced studies abroad, international travel and most particularly via 24/24 world TV channels and the Internet.
In any case, just because something has been done in a particular manner for 50 years does not mean it is the only way, or the right way. Consequently the existence during 50 years of a bad law does not turn it into a good one; even the best needs refining to suit the needs of the time.
The Prosecution Commission
It is against this background that the government was recently proposing to pass a Bill that would enable the creation of a Prosecution Commission. It was intended that this Commission would inspect/oversee the work of the DPP. To many people, the only surprise is that it has taken us 50 years to get to this juncture.
I am pretty sure that, if we were to ask the man in the street (ah the little man who no one ever thinks worthy of consultation!), he would not be averse to this proposal. Anything that is decided behind closed doors by one single person or a group of persons who do not need to give any explanation to anybody de facto arouses suspicion in the mind of the public. If there is any doubt about this, then all we need to do is ask the man in the street how much confidence he has in the justice system of the country.
Oversight of the DPP
Contrary to its usual habit of keeping mum on so many important issues, the intelligentsia comprising certain sections of the Establishment has suddenly found its voice. Using scare tactics, they talk of “threats to democracy, controlling the DPP, atteinte aux libertés fondamentales…” ad nauseum when it’s nothing of the sort. Apparently all these intelligent people cannot tell the difference between oversight and control. So be it; the public can judge for itself.
But I wonder where these cognoscente, these stalwart defenders of fundamental rights were when the fundamental rights of 600k working men and women were taken away during the course of a budget speech without prior consultation, requiring them to alter their contract of employment and work for an extra 5 years. I do not suppose they believe that the “sacrosanct” rights of the DPP is more worthy of their concerted defence efforts than those of the working masses. But I could be wrong.
Time for Change
But just like these defenders of democracy cannot accept that there should be oversight of the DPP, there are many thinking people who cannot believe that we have let him get away with it for 50 long years! In their (unfair) accusation of GM being autocratic, our dear intelligentsia forget that they are condoning the same attribute in favour of the DPP. Assuming for a second what they are saying about GM is true, then what’s good for the goose must surely be good enough for the gander?!
It is my firm belief that in a democracy, everyone should be held accountable for his actions. And if he executes his duties diligently and with total impartiality, then he need not have any fear. As things have stood since Independence, the DPP has acted independently and is not accountable to anyone for his decisions.
A few years ago, the magistrate court found that a certain Mr Meeah was answerable on several counts of serious crime and referred the case to a higher court. However when the case got to the superior court, the DPP decided to drop all the charges and no explanation was given nor could be asked for. There have been other decisions of the DPP which the man in the street is at a loss to understand.
In the name of transparency, something needed to be done. The proposed Commission comes a day not too soon to ensure a justice system based on accountability rather than the opinion of one single individual, no matter how competent he may be.
Oversight/Inspection in the UK
As all students of government know, the British Constitution is an unwritten constitution. Instead it has evolved over centuries to become a model for others to follow. From its beginnings with the Magna Carta 1215 to-date, the system has not ceased to evolve to serve the best interest of the people, where the concept of fairness is enshrined in the all-be-it unwritten constitution. With its constant evolution, it has thrown up a system in which the people have implicit trust, knowing full well that justice to all will be served. Can we say as much for Mauritius?
Like our DPP, the UK Crown Prosecution Service (CPS=DPP) is an independent prosecuting institution which decides whether a suspect should be prosecuted. Though he has no say in the day-to-day running of the CPS, the (AG) nevertheless oversees the work of the CPS. They have regular meetings during which the CPS briefs the AG on matters of public or parliamentary concern. And it is the AG who is answerable to Parliament for the CPS’s performance and conduct. In contrast to Mauritius, the use of nolle prosequi is also a prerogative of the AG, not the CPS.
In addition to the oversight by the AG, Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) is responsible for the inspection of the work of the CPS. We do not have a similar body in Mauritius. The proposed Commission is obviously aimed at filling this gaping void.
The CP next?
As stated above, in a democracy everyone should be accountable for his actions. CPs are not exempt. In the UK, there is an institution known as Her Majesty’s Inspectorate of Constabulary. This body is responsible for the examination and assessment of the police force to ensure their requirements are met as intended.
It is a little surprising that whilst proposing oversight of the DPP, the government is leaving the CP’s Independence unchecked. It is to hoped that this is only a temporary lapse and something will be done about it soon. Like the DPP, the CP must also be answerable for his performance as well as that of his Force. Transparency must become the leitmotif of our times.
The proposed Commission goes in the right direction to reinforce public perception and trust in the justice system. The disquieting proviso is that it will be applied retroactively from 01-Jan-2014. Why the decision-makers have chosen to do this has been the subject of a lot of speculation, creating unease in people’s mind. Retrospective law is bad law because it sets a dangerous precedent. Three years now, what next? Fifty years, three hundred years?
Let us consider an extreme hypothetical case, and imagine that a future GM passes a law that will banish slave-owners, and their descendants. So far no problem since we do not have people owning any slaves today. But if the law were to be applied 300 years retrospectively, then we can imagine the effect on the white community whose forefathers were indeed slave-owners!
So the Commission, yes. But thumbs down to retroactivity!