After the implication of some lawyers in the Lam Shang Leen report, Weekly speaks to Hervé Duval Jr, president of the Bar Council. He talks about the powers the Bar Council has, its limitations and addresses the perceived double standards in the treatment of two lawyers cited in the Drugs Commission report. He also uses the opportunity to give his opinion about the upcoming judicial and legal provisions bill.
The Bar Council hasn’t had any peace since you took over. What is suddenly happening to the legal profession?
I don’t think there is anything new happening. What is new is that this Bar Council is determined to do something about what is happening. What you see now is the result of the project we have been communicating about over the past two or three weeks. It’s a project we have been working on since March 2018. There are obviously some legitimate concerns which we have been addressing and there is a consultation process which was done with senior counsels as it is a tradition to approach senior counsels first with our draft. Some concerns were raised. Some were again addressed when this was circulated to the membership as a whole and we had a discussion on the 18th on the proposed rules which is what is the cause of debate today. It’s not the project itself but the rules that have provoked reactions.
What has provoked reactions is that you want more powers and some people don’t want the Bar Council to have more power. Is that not the gist of it?
It is not a matter of the Bar Council taking more powers. One thing that we all agree on is that the council cannot be making rules or conferring upon itself powers that it does not have. What we are doing is coming up with rules to exercise existing powers which, so far, have not been exercised.
What are these powers? As far as we understand, the Bar Council makes a lot of noise but there is more shadow-boxing than any real show of powers. Faced with lawyers who are obviously transgressing the ethical code, what disciplinary powers do you have?
As you rightly pointed out, the council has limited disciplinary powers. According to the Mauritius Bar Association Act, the council is the enforcer of a code of ethics so anybody who feels that a lawyer has breached the code can report him or her to the council. The council can do three things about which there is no debate: it can issue a reprimand, it can issue a severe reprimand and if the law determines that there is a prima facie case of an ethical breach, the council has to refer the matter to the Supreme Court.
These three things are, when you look at them, meaningless. If after a reprimand has been issued and the lawyer continues to breach ethics, what can you do?
In fact, in your question resides the problem. A reprimand does not mean anything anymore. It used to mean something. When the law was written, the disapproval of the council was not something that anybody would take lightly.
Today, we are in a situation where a reprimand is not enough and even a severe reprimand is not enough. The public expects that the enforcer of the code does much more. Now what more can be done? We are not inventing anything. We are not taking any more power. We are just looking at another provision of the act which empowers the council to determine when it has sanctioned a barrister to suspend him/her from membership of the Bar Council. In fact, to be able to practise law in Mauritius you have to be on the roll of barristers and a member of the Bar Council.
As things stand now, can lawyers not exercise law if they are not in the Bar Council?
They should not be able to exercise. When we suspend somebody, we have to inform the master that the person has been suspended and is therefore not eligible to practise law. The power to suspend exists. We are not inventing anything. What this council is doing that others have not is taking a purposive approach, as opposed to a literal approach to the law.
What is the difference?
A literal approach is just looking at the letter of the law and interpreting it literally, whereas a purposive approach looks at the reason behind the law and what is it supposed to mean and what it’s supposed to address and then you read the law to address the problem. The difference is the interpretation. This initiative is about independence, integrity and innovation.
Is it the right to suspend lawyers if they have transgressed the official code that you want to implement?
We want to enforce upon counsel a duty that is imposed upon them by a code of ethics. We want to read the law in a way that gives the council some teeth and the obligation to assume our responsibilities under the law. One of these is that we should suspend somebody who has been sanctioned by the council. When we refer someone to the Supreme Court, that is the most severe sanction. The law says that for less serious breaches, we can reprimand, but for more serious breaches, we must refer the matter to the Supreme Court. Now the power to suspend is something that no council will take lightly. The literal classical way of interpreting the law is that suspension for serious offenses can only be imposed by the Supreme Court. We are saying no, the referral to the Supreme Court itself is a sanction but it should also be combined with the power to temporarily suspend pending the outcome at the Supreme Court. That power is one that you find in every regulatory framework.
Are you going to implement that?
We have consulted, prepared the draft rules, and circulated them in September. We had a meeting on 18 October and got feedback and we have invited other members to write to us. In light of this feedback, we will finalise the rules and implement them at a conference.
But you are unlikely to have an easy time. Other lawyers, including former presidents of the Bar Council have said that the council should not have such powers. Antoine Domingue said that the council is neither objective nor independent enough to have such powers. How do you react to that?
My first reaction is one of regret and incomprehension because Antoine was at the meeting on the 18th and at no point in time did he say what he said in the press afterwards. I regret that he did not say everything he had to say at the forum when we were consulting our members.
Why should he if he feels that ‘the forum was illegal, not democratic and the moderator was not doing the job like he was supposed to’?
Again, same reaction. I am at a loss to comprehend why these reservations about the format of the meeting were not raised at the meeting. An invitation was sent one month before the event and the format of the meeting was sent a week before the event. There, not one person raised the matter about the legality of the meeting, the presence of the moderator or the manner in which he moderated. I don’t understand why when lawyers sit to discuss matters, concerns about the legality of the meeting are not raised at the meeting.
With hindsight, was the meeting legal?
Then why would Domingue say it was illegal?
He is the only one who said it was illegal and I understand. It’s because he is comparing it to a general assembly of the Bar Association which must be presided over by the chairman and which must have an agenda. No one ever said that this meeting was an assembly. It was an open invitation to our members to a presentation and then to discuss the draft rules in the second part. There was no agenda because it was not an assembly. At that meeting, no one suggested that it was an assembly and no one called for a vote. The invitation was accepted by more than 115 people. As a matter of fact, it was minuted and we therefore have a faithful account of all the concerns so that we can address them.
How are you going to address Domingue’s concerns about objectivity? If I am on the council and I am deciding the fate of my own colleagues, I might not have the objectivity necessary to suspend them as lawyers?
What does self-regulation mean? The whole point of being a professional body is that if you do something against your profession, you are judged by a body of your peers. Isn’t that what self-regulation means? So if that argument was to hold, that is you cannot judge your peers because you are not independent, then I am sorry but that cannot stand and which is why I am surprised that it is coming from Antoine.
Domingue is not the only one. Some people, for example, are criticising the double standards of the Bar Council. Their contention is that in the case of two lawyers, Sanjeev Teeluckdharry and Rex Stephen, you came down very hard on the former but not a single statement was made when the latter was provisionally charged. Do you accept the criticism?
The problem is that someone makes a statement and then people react to that without looking at the facts. Fact one: there was a commission and its report where 17 lawyers were named. There was a communiqué from the Bar Council as a reaction to that. What did the council say? Three things: we were surprised that the council had been criticised without it being heard; we were surprised how the commission could decide by itself to absolve lawyers who admitted that they had breached the code of ethics and only because they behaved well before the commission. So we said that for us, if there are established breaches of conduct, it would not matter how the lawyer behaved before the commission. The third thing we said is that there is a task force which has been set up by the Executive to enquire into every lawyer named, so we would not conduct parallel enquiries but will wait for the findings of the task force. If there is an offence found under the law, we will not interfere in the judicial process but when there’s purely a breach of the code of ethics, not dealt with under the law, we will do the job. That’s why I am at a loss when we are comparing Teeluckdharry and Stephen. People are just reacting to statements and saying ‘you are coming hard on Teeluckdharry and not doing anything about Stephen’. In the case of Stephen, we reminded people that this was an enquiry into a crime; we would not interfere in the judicial process and would only react to the outcome. As for Teeluckdharry, the explanations we asked him to provide had nothing to do with what the report said, but with how he conducted himself after the report came out.
What is so outrageous about the way he conducted himself? The fact that he threw the report in the bin?
I cannot go into the details of why there is a referral, but it is not limited to the throwing of the report in the bin. That in of itself could be looked into because when you are a lawyer, you are free to say what you want as long as you show the decorum expected of a lawyer in all circumstances. And a lawyer does not act out of court in a way that he should not act within court. A lawyer does not go about throwing reports in a dustbin.
But lawyers are a section of the population, some are refined and some are crude…
The code of ethics does not allow you to behave in a crude way nor does it distinguish between those who have had a refined education and those that have not. There is one code for every lawyer and it says that you shall not bring the profession into disrepute.
You said that there were other things.
The council wants him to explain his actions and statements after the report came out. You are a journalist, you must have seen the interviews broadcast on the internet. Today, Teeluckdharry is in the position he is in because he refused to come and explain himself to the council.
Teeluckdharry also has had other cases against him in the past?
Yes, there have been referrals in the past as well for similar conduct.
There was a referral in the Michaela Harte case in 2014. We are in 2018 and the guy is still practising. So, what is the point of the other referrals?
The point is not about making sure that something is seen to be happening but about exercising powers of the council…
The limited powers that it has…
Yes, and it is precisely because they are limited that we have to use them fully. The law says you have to sanction someone when there is repeated misconduct and this is the kind of situation where you have to protect the public and suspend temporarily. The reality today is that it takes time for things to be dealt with in court. For the past four years, we have seen no action. That is why we, in this council, have accepted the responsibility to do everything that we can and do it properly.
What do you think of the judicial and legal provisions bill that will be presented in Parliament? Good or bad news?
I think it’s a missed opportunity. Going for piecemeal arrangements, when there is unanimity that there needs to be serious changes especially when it comes to powers to regulate the legal profession in the country. It is disappointing! By doing things in the way they are, the Executive is leaving no doubt as to where its priorities are.
What are those priorities?
For one thing, that the attorney general should no longer be part of the Bar Council and that the law officers should not be amenable to the disciplinary powers of the Bar Council. We can have differences of views, but what signal are we sending to the population when at the time when the bar is talking about coming up with better rules, when the press is taking an interest in what is going on in the bar including the differences of views expressed publicly, the Executive sends the signal that its priority is to take the attorney general out of the bar. Is that really the priority and the most important thing to do right now? If you are going to change the Mauritius Bar Association Act, do it in a comprehensive manner and make significant changes that are expected by the public.
Some people see in this bill a way for the Executive to nibble its way into the powers of the legal profession…
I made a promise to myself that for as long as I am chairman of the Bar Council, I will not express any views about anything that does not concern the Bar Council.
If you see the powers of the legal profession being eroded, will you stay silent because you are the chairman of the Bar Council?
The Mauritius Bar Association does not exercise power by sitting on the Law Reform Commission; the commission has its own powers. But what I will say, as a general comment, is that people expect more and more independence from institutions and less interference from the Executive. The Bar Council will always stand for the independence of institutions and from that perspective, we don’t see anything positive coming from the judicial and legal provisions bill.
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