The government’s decision to relocate the office of the director of public prosecutions under the attorney-general’s office has the legal profession up in arms. Do the critics have a case? What are the political ramifications of this fight? And how, in this case, is the government its own worst enemy.
The line between politics and the legal profession has always been a bit blurred. After all, in the last election, nearly a third of the candidates fielded by the ruling coalition were lawyers. But now the decision to bring the office of the director of public prosecutions (DPP) – the highest prosecution authority in the land – under the office of the attorney-general risks muddying the fi ne line even further. And it’s a fight that’s split the legal profession. Yesterday, the Bar Association decided to meet on 20 March and vote on what its official stance will be. This will be the third time the association will meet to mull on this issue.
But first, what is the fight about? Unlike the DPP – which is a constitutionally protected post – the attorney general is a political appointee tasked with advising the government on legal matters, drafting bills and occasionally providing a legal patina for whatever it chooses to do. Given this divergence of motives, the previous consensus has rested on keeping these two posts as far apart as possible. In 1998, the Mackay Report was forthright on the matter stating that the DPP should have a separate staff and offices, and making it operate under another department would infringe on the constitutional guarantee of its independence. Thus, in 2005, the DPP was constituted as a separate offi ce by the then-attorney general Rama Valayden. In March 2009, the law reform commission found that even the DPP sharing a budget with the attorney-general or the latter’s staff advising the DPP was “unconstitutional”. This article of faith has been overturned by the government’s decision.
For critics, the move risks mixing politics and the system of justice. “Can you imagine somebody administratively under the attorney-general and dependent on him for everything right down to a per diem allowance and then expecting that person to deal with cases some of which may implicate the government?” lawyer and MMM MP Reza Uteem asks. “The conflict of interest is obvious!” If the government gets its way, ex-Attorney General Yatin Verma argues, “it will be dangerous since any officer of the DPP can simply be summoned by the attorney-general with all his files and that will damage the DPP’s ability to judge cases.” Another ex-attorney general, Rama Valayden, says, “This is a step back on the question of independence of the judiciary. What signal are we sending here?”
The current DPP, Satyajit Boolell, has not just slammed the move but also raised the possibility of challenging the government’s decision in the Supreme Court. If he does go ahead, it will be the first time a sitting DPP has challenged a government in court in this manner, according to constitutional lawyer Milan Meetarbhan. “The way I look at it is that if the DPP does go to court, he will argue that as the guardian of the constitution, the supreme court should rule against the government move that restricts the constitutional independence of the office,” Meetarbhan tells Weekly.
Thus far, the government side insists that the DPP’s independence will not be compromised. The present attorney-general, Ravi Yerrigadoo, says that the move will ensure greater accountability for the way the DPP functions. Former Chief Justice Sir Victor Glover likewise argues that merging the two offices would help in ensuring that legal staff are trained at the same level. Meetarbhan, however, disagrees with Glover’s reasoning by arguing, “We cannot tailor institutions based on individual career paths.”
But this is merely scratching the surface. This fight between the DPP and the government has distinct political undertones as well. After all, the current DPP is viewed by the current government as a loyalist of the old Labour Party regime, and the government has not exactly hidden the fact that their decision is prompted by who the DPP is, just as much as any instinct for reform. The energy minister criticised Boolell as a “little prince” appointed by the former government and stated that Boolell had rejected an offer to be pensioned off into a judicial post. Leaving many to wonder whether the decision to bring Boolell under their own man in the form of the attorney-general is a last-ditch attempt to reign in a DPP the government does not trust politically. “It’s clear that this is not a simple administrative matter,” says Uteem. “We too have had our disagreements with the DPP but we never went to the extent of attacking the office itself. Where does this stop?” By attacking the DPP personally, ministers have weakened their own case by creating confusion about whether it’s the office or the man they take exception to.
And then there is the inconvenient little matter of the fact that the current DPP has approved cases against current ministers in the past. Back in March 2014, Boolell greenlighted a case against the current ICT minister and son of the prime minister, Pravind Jugnauth, charging him with confl ict of interest regarding the MedPoint case. Another case against the minister of housing and lands, Showkutally Soodhun, is also in progress since September 2011 concerning defamation against the previous prime minister.
“If the government gets its way, then the DPP could simply be overruled by the attorneygeneral or the attorney general can choose which investigations to give resources to,” says lawyer Yousuf Mohamed. In the event that cases against sitting ministers are dismissed, Mohamed adds, “then it’s only the DPP that can appeal such an acquittal, so I don’t think that it’s a purely administrative decision.”
This view is lent further credence by the fact that the decision to bring the DPP under the attorney-general loyal to the government was taken hot on the heels of a previous decision to take the asset recovery unit – that would be heavily involved in the case against the previous Labour prime minister – out of the control of the DPP. “These decisions came days after one another, so it’s no coincidence they are related,” explains Meetarbhan. Add to that the fact that the current DPP is seen as a bit of an unpredictable wild card – just before the elections, he raised the question of presidential immunity just as the Labour Party and the MMM were calling for an empowered presidency – and it’s clear why the government would be eager to clip the DPP’s wings.
Just how far the government is willing to stake its political capital will depend almost entirely on how forcefully the legal profession is willing to push back.
[Published in Weekly 5 - 11 March 2015]
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