{"id":42144,"date":"2025-01-25T07:11:47","date_gmt":"2025-01-25T03:11:47","guid":{"rendered":"https:\/\/www.mauritiustimes.com\/mt\/?p=42144"},"modified":"2025-02-03T16:05:31","modified_gmt":"2025-02-03T12:05:31","slug":"politicians-should-not-create-a-culture-of-fear-or-retaliation-among-civil-servants","status":"publish","type":"post","link":"https:\/\/www.mauritiustimes.com\/mt\/politicians-should-not-create-a-culture-of-fear-or-retaliation-among-civil-servants\/","title":{"rendered":"“Politicians should not create a culture of fear or retaliation among civil servants"},"content":{"rendered":"

but rather allow them to perform their duties independently”<\/span><\/h3>\n

<\/p>\n

Qs & As<\/u><\/span><\/p>\n

* ‘The government must initiate proceedings. There is already significant public dissatisfaction with the perceived slowness of investigations’<\/span><\/h2>\n
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\"\"<\/span><\/h2>\n

“With the new regime, expectations are high. For too long, an inept ICAC, headed by an equally inept leadership, has been overlooking many cases of dishonesty, corruption, and malpractice. The abuse of contract awards without proper checks on public finances is simply revolting, and nothing has been done about it. The new government must launch a thorough investigation into the awarding of these contracts…”<\/strong><\/span><\/p>\n

\n

By Lex<\/strong><\/span><\/p>\n

The Indian Supreme Court’s recent ruling on Section 197 of the Code of Criminal Procedure (CrPC) has significant implications for the immunity of public servants. This ruling, as highlighted by the Hindustan Times<\/em>, clarifies that prior sanction for prosecution is “not a shield for corrupt practices” and cannot be misused to disguise illegal acts as official duties. This analysis by LEX explores the ramifications of this landmark judgment, examining its criteria for determining acts connected to official duties, its message regarding malice and dishonesty, and its broader impact on judicial independence and the rule of law. Furthermore, it considers the potential lessons for Mauritius in balancing executive authority and judicial oversight, particularly in the context of the Public Officers’ Protection Act. <\/strong><\/span><\/p>\n

* What is the significance of the Indian Supreme Court’s recent ruling on Section 197 of the Code of Criminal Procedure (CrPC)? How does the judgment redefine the concept of immunity for public servants?<\/strong><\/span><\/p>\n

According to the Hindustan Times<\/em>, \u201cThe Supreme Court has outlined the scope of immunity granted to public servants, making it explicit that the requirement of prior sanction to prosecute them is ‘not a shield for corrupt practices’ and that the immunity cannot be misused by public servants to camouflage illegal acts as duties performed under the guise of official authority.”<\/span><\/p>\n

* What are the criteria established by the Court to determine whether an act is connected to official duties, and what message does the ruling send to public servants regarding malice and dishonesty?<\/strong><\/span><\/p>\n

Again, in the view of the Hindustan Times<\/em>, \u201cthe object behind the enactment of the law is to protect responsible public servants against institution of possibly false or vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act in their official capacity…<\/span><\/p>\n

\u00a0* This judgment is considered to be a strong assertion of judicial independence, and it reaffirms the judiciary’s role in upholding the rule of law and fundamental rights. Do you share that view?<\/strong><\/span><\/p>\n

Any judiciary in a democratic society must not only act independently but must also be perceived as doing so. There are various approaches that an apex court can adopt. First, the court may take a purely conservative approach, limiting itself to interpreting the law without being creative. Second, a court can adopt a proactive stance by supplementing legislation passed by Parliament and introducing new concepts. For instance, the Supreme Court of India pioneered the concept of public interest litigation, allowing any citizen to challenge decisions of the executive.<\/span><\/p>\n

In Mauritius, however, the procedure for such challenges remains cumbersome. Any individual wishing to contest an executive decision must demonstrate their personal interest in the matter. This approach follows the British tradition of requiring the establishment of a legitimate interest to challenge a decision.<\/span><\/p>\n

Another approach an apex court may take involves making decisions influenced by the preferences of specific religious groups. For example, certain rulings of the U.S. Supreme Court on abortion illustrate this tendency.<\/span><\/p>\n

\u00a0* On the other hand, what lessons can Mauritius draw from this judgment in balancing Executive authority and judicial oversight?<\/strong><\/span><\/p>\n

The question is not about balancing executive authority and judicial oversight. Instead, it revolves around whether the judiciary in Mauritius will consistently uphold the concept of immunity for public servants.<\/span><\/p>\n

The critical issue is whether the courts will maintain a clear boundary between legitimate immunity intended to protect officials performing their duties and attempts to misuse immunity as a shield for corrupt or illegal practices. This distinction is vital to ensure accountability and preserve public trust in the justice system.<\/span><\/p>\n

* How can Mauritius apply the principle that public office is a trust, as highlighted in this judgment and what steps can Mauritius take to ensure public servants are held accountable for acts beyond the scope of their duties?<\/strong><\/span><\/p>\n

Many pieces of legislation contain a clause that grants immunity to public servants, including judges and magistrates. There are few judgments on this issue. However, the existing ones show that a challenger must prove that the act performed by the public servant was outside the scope of their duties. This is very difficult to prove.<\/span><\/p>\n

For example, when the police arrest a person, the latter may feel the arrest was illegal and therefore did not fall squarely within police powers. This is not always easy to prove under the current state of the law.<\/span><\/p>\n

* In your view, does the Public Officers’ Protection Act (POPA) inadvertently foster wrongdoing, and would it be better to abolish it altogether?<\/strong><\/span><\/p>\n

The POPA should simply be removed from the statute book. It overprotects public servants, and the procedure for filing an action against a public officer is burdened by complex procedural rules.<\/span><\/p>\n

In a 2011 report, the Office of the High Commissioner for Human Rights (OHCHR) expressed the following view: \u201cThe absence or collapse of the rule of law in any State can result in violent conflict or repression, leading to gross violations of human rights. Impunity is often the primary obstacle to upholding the rule of law.\u201d<\/span><\/p>\n

* Given past experience and track record, do you think Mauritius can foster a legal culture that protects honest public servants while penalizing misconduct? That may be a tall order given that it will require ongoing efforts to strengthen institutions, protect whistleblowers, improve judicial independence, and address political pressures that may hinder the enforcement of the law, isn’t it?<\/strong><\/span><\/p>\n

Unless civil servants stop believing they are agents of a political party, as opposed to servants of the State, nothing will change. Politicians have a crucial role to play here. They should not create a culture of fear or retaliation among civil servants but rather allow them to perform their duties independently.<\/span><\/p>\n

In the “Code of Ethics for Civil Servants”, Mr Suresh Seebaluck, then and now Secretary to the Cabinet, wrote: \u201cEthical leadership is critical for the promotion of a value-based Public Service. Public service leaders should therefore continue to lead by example in matters of propriety and ethics and be excellent role models of integrity. They should also ensure that ethical behaviour cascades down the line such that it becomes a constant issue of concern and practice within the whole Public Service.\u201d<\/span><\/p>\n

Under the heading “Obligations to the Government of the Day and Relationship with Ministers”, the Code prescribes:\u00a0<\/b><\/span><\/p>\n

“In broad terms, the first priority of Public Officers is to carry out Government policy. They shall fulfill their lawful obligations to the Government with professionalism and integrity. In so doing, they are expected to act in a manner that will bear up against the closest public scrutiny.<\/p>\n

“Ministers bear political responsibility for government policies and Public Officers have a long-established role in assisting with the development as well as implementation of such policies. The relationship between Public Officers and Ministers shall be based on mutual trust and confidence. Public Officers shall work with their Ministers to the best of their abilities, with integrity, courtesy and respect.”<\/p>\n

* The real litmus test for the current government will be how effectively and swiftly it addresses suspected cases of corruption and wrongdoing from the previous administration, especially those involving the sale of aircraft, Covid emergency procurements, as well as serious matters such as the murders of political activists disguised as suicides. This also applies across various sectors, including the civil service, parastatal bodies, and state-owned enterprises. What are your thoughts on this?<\/strong><\/p>\n

If there is political will, this will be done. With the new regime, expectations are high. For too long, an inept ICAC, headed by an equally inept leadership, has been overlooking many cases of dishonesty, corruption, and malpractice.<\/p>\n

The abuse of contract awards without proper checks on public finances is simply revolting, and nothing has been done about it. The new government must launch a thorough investigation into the awarding of these contracts.<\/p>\n

* Do you believe these matters are truly complex, or should the authorities be able to take decisive action without undue delay?<\/strong><\/p>\n

Whether these matters are complex or not is not the issue. What matters is taking decisive action… that is take the bull by the horns. The government must initiate proceedings.<\/p>\n

There is already significant public dissatisfaction with the perceived slowness of investigations into numerous instances of malpractice under the previous regime.<\/p>\n

\n

Mauritius Times ePaper Friday 24 January 2025<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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