Geoffrey Cox: “The Privy Council judges will not be wholly oblivious to the practical consequences of their decision.”

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Geoffrey Cox answers our questions about the controversies that have hit the country recently.

Geoffrey Cox answers our questions about the controversies that have hit the country recently.

Queen's Counsel and Conservative MP for Torridge and West Devon, UK, Geoffrey Cox answers our questions about the controversies that have hit the country recently. We also take the opportunity to try and wring some information out of him about politically-related issues. An interview to be read between the lines.

You have been an observer of Mauritian politics and you happen to be a Queen’s Counsel.  What do you make of the recent conflict between the State House and Government House? 
Well, it’s important to understand the nature of the Mauritian constitution. That is, it is essentially a Westminster constitution with some modifications, and it places executive power firmly in the hands of the prime minister and the cabinet so long as the prime minister enjoys the support of the majority in the National Assembly. In those circumstances, it is hard to see how any Head of State, in a Westminster model is empowered to take what are essentially executive measures such as ordering a commission of inquiry unless it is on the advice of the executive. So, I have a lot of difficulty understanding how such a commission could have been proposed and what I can say is that these events are obviously very regrettable and a great tragedy for the president whom I know to be a very distinguished and accomplished lady. It’s not for me to comment on the underlying facts but, in relation to the commission of inquiry, she was ill-advised. 

So why do you think she did it? 
I cannot comment on the motivations; it’s certainly not my place to comment on political matters in this country. I maintain the firm line that I cannot have a political opinion on matters in Mauritius because I don’t vote here. However, on legal matters, I can comment, and you asked me about the commission. Clearly, on the face of it, there are obscure facts that require some scrutiny and examination and the government has set up its own commission. The president has maintained a series of denials about the facts alleged against her and I understood that the commission of inquiry that she wanted would have examined all of those facts, including whether her conduct had been in any way blameworthy. I can quite see why the former president wanted that inquiry. Legally, however, that was not in her power to do. 

The commission of inquiry that the government has set up will look only into the events leading to the president’s setting up of a commission of inquiry. Is anything likely to come out of that? 
It seems a very narrowly drawn inquiry but then again, I do not have all the facts that led the prime minister to set up that commission…

He said that there was a conspiracy to overturn the government and he would like to know who is responsible for that. 
The prime minister is absolutely entitled to advise the president and use his own statutory powers to set up that inquiry. For all I know, he may be in possession of facts requiring some public scrutiny. 

Shouldn’t the terms of reference of the commission of inquiry be wider than that to shed light on all the aspects of this saga?
Plainly, the former president thought so, but I cannot comment on that. There is clearly a feeling among some that the inquiry should be much wider, but that’s not for me to say. 

Can the former president refuse to depone in front of the commission using her immunity as president? 
Whether or not the former president is compellable as a witness would depend upon the statutory powers of the inquiry and the constitution. I don’t believe that the constitutional immunity she has covers a commission of inquiry, but again, that will also depend upon the statutory powers of the commission of inquiry and what the act of the National Assembly allows the commission to do. If it allows it to compel witnesses, I don’t see why they cannot compel the former president. 

Even if she had immunity as president while those acts were committed? 
She is not above the law even while president. She is immune from civil or criminal proceedings for acts in the exercise of her functions.  But a president’s conduct outside those functions is treated by the constitution just as any private citizen would be except that while president s/he cannot be subject to any legal process. 

Explain to us what immunity means in these circumstances? 
It simply means that in the circumstances of executing her functions as president, she cannot ever be subjected to civil or criminal proceedings for the execution of those functions. But let’s say a president, and I don’t mean this president, committed a crime. There is no permanent immunity; that crime would be investigated as in the case of any other private citizen. The permanent immunity is restricted only to the exercise of her functions as president and continues even after she leaves the Presidency. The widespread misunderstanding is that immunity gives the president some sort of permanent immunity to any criminal misbehaviour. That’s not the case; the president is as amenable to the criminal law as any other citizen. The only difference is that s/he cannot be the subject of any legal process such as the issue of a warrant or summons while in office. 

Could the former president then have been investigated for her ties with Alvaro Sobrinho even while she was still in office? 
Yes. 

Before she stepped down? 
Yes. If there were grounds to believe that there had been criminal misbehaviour, then there would be nothing to prevent the president from becoming the subject of a police inquiry. Obviously, it would have to be handled very delicately because of the risk of damage to the reputation and interest of the State. And so, any such investigation would have to be undertaken with great and anxious care, to make sure there are compelling grounds for action. There have to be very clear and compelling grounds to indicate criminal behaviour before an investigation of the holder of a constitutional office would be justified. 

Who decides how compelling the grounds are? 
Initially, the police with the advice of the director of public prosecutions (DPP). There is nothing to prevent the police from going to the DPP to ask for advice on whether there are such grounds. There is an onerous duty to make sure that no investigation is undertaken without these compelling grounds, especially when dealing with such a public figure. But once that bar has been crossed, then there is nothing preventing such an investigation. Let me give you an entirely hypothetical example away from the current situation in this country. Suppose a president, elected in 50 years’ time, was accused of murder and that unfortunately there was evidence to implicate the president in the murder at the presidential residence. Suppose that was the case, could the president seriously prevent investigation by arguing that s/he has immunity? Of course not, and neither does the Westminster constitution afford the president such immunity. However, unless s/he resigned, or was removed under the constitution, which is what would happen in practice, s/he could not be prosecuted until the end of his term. 

You must have followed the episodes preceding the president’s resignation: I’m leaving, then not leaving and then setting up a commission of inquiry then resigning. How did you see that situation from outside? 
You will understand that I am not in a position to make comments and I intend to resist your temptation for me to make comments about high personalities in this country. All I will say is that, and particularly as a foreigner, we cannot be in possession of all of the facts. It is something I am very familiar with from my own country that usually what we read is only half the story and that people’s behavior can only be explained when you know the full truth. 

The full truth we can only know through a commission of inquiry about the whole saga. Unfortunately, the case concerning all the facts around Alvaro Sobrinho will go to the ICAC while everything about the last few days of the former president will go to a commission of inquiry. Why that difference? 
The ICAC has a duty under its governing statute that empowers it to carry out a preliminary inquiry about cases concerning public figures who are often the subject of often unfounded attacks. There are always people ready to attack those in public life and the ICAC’s job is to assess whether there are real grounds to investigate. And as I said, under its statute, if there are criminal grounds for a case, then the ICAC will have to investigate. In the UK and in Mauritius, no public figure is above the law. 

Why not allow a full investigation by a commission of inquiry? 
Because the ICAC and the police are the legally correct bodies to do it. 

Why do some facts have to be investigated by a commission of inquiry and others by the ICAC? 
The commission of inquiry is looking into non-criminal behaviour, at whether or not the president was misguidedly led into carrying out an ultra vires exercise of a presumed but non-existent power. Alleged criminal behaviour is best investigated by bodies charged to investigate criminal behaviour, and that is either the ICAC or the police. There can be no serious criticism if there is a proper investigation. 

What about the Supreme Court? Could it not decide on the president’s behaviour? 
No. The president is the same as any citizen when it comes to criminal behaviour. So why should the Presidency have the special indulgence of a commission that does not have the powers to initiate criminal proceedings anyway? A judicial inquiry cannot be set up for a criminal matter, unless a criminal inquiry has taken place and failed and as a last resort a judicial inquiry is carried out. But even then, it has no criminal powers, with no powers to convict or punish. 

Why did we have a commission of inquiry on drugs then?
That’s because it was charged with looking at the overall position in this country on drugs, the mechanisms of money laundering and drug dealing. It has focused on many different sectors, the professions, the retailing and wholesaling of the drugs. That kind of inquiry is correct for looking into the overall drug trade because it is not concerned with catching or punishing individuals. If you are looking at individuals and at punishing them, the only proper institutions to do that are the law enforcement bodies. 

It so happens that in this country, the law enforcement bodies are not seen as independent, but are perceived to be under the control of the government. 
I cannot comment on that. That is for the Mauritian people to decide. But the constitutional and legal position is clear: criminal matters are to be dealt with by the law enforcement authorities. 

Fair enough. Last time we spoke, we talked about provisional charges and a number of people were charged under what was perceived to be a political vendetta. All those charges have been dropped except for two against former Prime Minister Navin Ramgoolam. What do you make out of this? 
The first thing I would say is that you could argue that the system is working, that the courts and the DPP are working to filter out unmeritorious charges appropriately, in this case by dismissing them. The problem with provisional charges, as you know well, is that they are a tool for unfairness because they allow people to be subjected to restraints on their liberty and reputational damage with no adequate foundation. I know that many here believe that the system is in need of reform. But the dismissal of those charges shows that the court and the legal and judicial system is working. 

There are two charges left against Ramgoolam, one is about money laundering, isn’t it? 
This is a misunderstanding. The charges that I have seen relate exclusively to exceeding the limit on cash transactions, not money laundering. It is an offence for which big banks in this country have been charged and it does not in any way suggest that the money accepted is the proceeds of crime. The leading case that I conducted in the Privy Council on behalf of the State was of an unfortunate man who had worked as a nurse in the UK National Health Service and then brought his earnings back in cash and deposited them in a bank here. They exceeded the limit of Rs500,000 in cash transactions and that gentleman had to be convicted. However, the Privy Council did add that the nature of the charge meant that in no way did the conviction imply that the money was illegally obtained because the offence is committed even when it was lawfully obtained. Similarly, in this case, the charge is simply that Dr. Ramgoolam has exceeded the cash limitation on transactions in Mauritius, by accepting donations to his political party. No criminal intent is required or being alleged by the DPP; it is a regulatory offence that in no way entails criminal behaviour. The offence is committed if you make or accept a payment in cash on any one occasion that is one rupee above the limit of 500,000. 

But if it’s against the law, it’s illegal, isn’t it? So it is a crime!
The law divides up offences into those that require a criminal intention or a “guilty mind”, as we lawyers call it, and those that don’t and are created for public policy reasons that have nothing to do with punishing criminality. This is one of the second type. They are often called “quasi-criminal” or regulatory offences. 

What kind of punishments have been given out? 
In these kinds of cases, the sentences given out have been fines. And certainly, for a first offence of that type, one would be very surprised indeed if it was anything other than a fine. 

The law says a prison sentence of up to three years.
That’s the maximum. You have to understand that the presumption under this law is that the money is lawfully obtained. But in this country – and no other country in the world has such a law – you are not allowed to pay for a car or jewelry, even out of your own hard and lawfully earned money, with more than Rs500,000 in cash. 

What’s the purpose of this law? 
It was introduced in an attempt to make it more difficult to carry out money laundering. It is very common for legislation such as FIAMLA (the Financial Intelligence and Anti-Money Laundering Act – Ed) to create offences such as this one that prevent and make it more difficult to commit the mischief (money laundering) that the Act is aimed at as well as offences designed to criminalize that mischief and to punish it once it is found to have been committed. What Dr. Ramgoolam is charged with is in the former category. It is a prophylactic offence. We can commit this offence even if the money is paid out of grandma’s piggybank. It does not require a criminal mind or even what most people would regard as criminal behaviour. In no other country is it even an offence. It carries no criminal stigma. 

But there is also the Roches Noires case. What are the details of that case? 
The charge is of reporting an imaginary crime. A typical example of such a crime would be one such as recently happened in France where a man complained to the police that he had been attacked by a gang of Islamic youths. He had invented it because he was a racist and he wanted to stir up trouble. The police had to investigate and so the mischief of such an offence is that it opens up innocent people to the possibility of arrest where no offence has been committed and it wastes the time of the police. That is the type of situation which the offence is designed for. 

In the case of the former prime minister, what is the imaginary crime he reported? There was a robbery, wasn’t there? 
I cannot comment on that. You asked what the nature of the offence was. 

You won’t be able to comment on the Medpoint case either. However, I would like to clear up one thing with you: There was a big controversy over an interview in Weekly a few weeks ago about whether the Privy Council only looks at the facts or looks at other considerations as well. Could you perhaps weigh in on that?
The Judicial Committee of the Privy Council is one of the finest courts in the world. Previous judges who have sat there are without question some of the greatest jurists to have sat in a court.  They will be governed only by the legal merits of the arguments advanced by both sides. It is true that they will not be wholly oblivious to the practical consequences of their decision, but only in so far as they may look with even more anxious scrutiny at whether or not the merits of the case justify the course that they are asked to take. 

In less diplomatic language, the judges of the Judicial Committee of the Privy Council will be aware of the political ramifications of their judgment on the government of another country…
Well, manifestly they will be aware of them, but they will not determine the outcome.  

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