“The new law may be regarded as too subjective and too vague and therefore fall foul of the test of legality”

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Following the amendments to the Judicial and Legal Provisions (No 2) Act 2018 and concerns about its encroachment on the freedom of speech, Weekly speaks to Antoine Domingue, former chairman of the Bar Council, on his reading of the new legislation.  He also explains his disagreement with the Bar Council regarding several legal issues.

The Judicial and Legal Provisions (No 2) Act 2018 was qualified by several people in several ways. How do you qualify it?

It’s a complicated issue. I have a pending appeal which raises similar issues. The fact of the matter is that prior to amending the legislation of 2018 which amends sections 2, 46 and 47 of the Information Communications and Telecommunications Act 2001 (‘ICTA’) there was no nexus between the transmission of a “message” and the resulting annoyance likely to be caused or in fact caused to another person. The new legislation therefore presumes to plug whatever loopholes have been detected in the original text of 2001.

Isn’t this ‘plugging the loopholes’ a threat to the freedom of speech?

There is a need to strike a fair balance between the freedom of speech and the need to protect the citizen from continuous harassment by means of a telecommunication device.

But here the amendment is not about harassment. In in fact criminalises anything which is likely to cause annoyance, humiliation etc.

The new legislation refers to a plethora of objective and subjective situations which do not include the word ‘harassment’. What was and has been criminalised is conduct which is likely to cause or does cause “annoyance, humiliation, inconvenience, distress or anxiety” to another person. These are the key words. The word ‘annoyance’ has been used on the UK and Indian statute books, but within the context of a ‘message’ which the maker and transmitter knows to be false.

That seems fair. The new legislation seems to criminalise any ‘annoying’ messages, even if they are NOT false. Isn’t that inconsistent with the principle of the freedom of speech enshrined in our Constitution?

Here is the rub! It was unclear to me whether our own ICTA 2001, prior to the recent amendment of 2018, did pass the test of constitutionality and legality… and that is an issue which was mooted before the court. The matter has been further compounded by the new text of 2018! There is nothing to prevent the Supreme Court of Mauritius from applying the principles which may be culled from Singhal v Union of India (2012) whereby the Supreme Court of India struck down similar legislation as being “disproportionate” and inconsistent with freedom of speech. I have raised these points in a pending appeal case.

Is the law unconstitutional?

The presumption of constitutionality does apply to any law. It is one of the canons of our constitutional law. One needs to construe an Act of Parliament so as to give it effect and so that it does not conflict with the fundamental tenets of the Constitution. If the new law is inconsistent with any provision of the Constitution then, by s2 of the Constitution itself, the law shall be void to the extent of such inconsistency and it shall be struck down by the Supreme Court of Mauritius…

Apart from the use of the word ‘annoyance’, which is vague and subjective, the law says that even if you did not intend to, if the message causes annoyance, humiliation…, you are liable to 10 years in prison. Isn’t that unique to our country?

You may be on stronger ground here. The UK and Indian pieces of legislation do refer to the need for such criminal intent as an ingredient of the offence and they also require that the impugned ‘message’ should be false and known to be so when it is transmitted. The original ICTA 2001 text contained a notable loophole in that it did not create the required nexus between the transmission of a message and the mischief which might be intended or occasioned by its maker and transmitter.

Isn’t the law this way vague and subjective?

It may be regarded as too subjective and too vague and therefore fall foul of the test of legality and be regarded as an undue interference with the freedom of speech in a democratic society. The Supreme Court of India struck down similar legislation as ‘disproportionate’. As I have pointed out, in certain jurisdictions, such conduct is not criminalised unless there is a message which is known to be false coupled with a criminal intent to deliberately inflict harm upon some other person and, in some jurisdictions, unless there is also an element of repetition to it. You cannot also, for example, enact that anyone who breathes the clean and pure air of Port Louis commits a criminal offence… As an English judge tersely put it, “The air of England is too clean and pure for any slave to breathe!”  I also need to point out that there are other provisions within the Criminal Code which criminalise defamation.

So what’s the point of adding more restrictions?

There may be something at the back of someone’s mind. Maybe on account of the photograph which appeared recently.

You are referring to Sherry Singh’s photo?

I am referring to the photograph of Kobita Jugnauth and Sherry Singh. It may well have prompted this reaction. There was definitely a loophole in the law that had to be plugged as telecommunication devices in the wrong hands are capable of causing grave mischief. However, one should strive to strike the right balance in a democratic society.

Just before this law was passed, a citizen was almost thrown out of Dubai for his critical posts. Does that worry you?

If true, then it is quite worrying. It has by now been extensively reported in the press and the person concerned, who has been gagged, has nevertheless gone public. The local authorities have denied any involvement, which begs the question: why was he then taken to task in Dubai? And, also, why are the authorities in Dubai not denying it?

What is your reading of the incident?

I don’t know what the foreign law provides for in Dubai. I don’t understand why someone has to give an undertaking not to exercise his fundamental right to freedom of speech. That’s quite alarming. The man cannot speak his mind from wherever he is or else he must risk deportation! Speaking for myself, I would rather risk deportation than live in such state of abject subjection in a foreign state.

Do you think somebody here has pulled the strings?

In the light of what I have read lately, this possibility cannot be disregarded altogether, especially as I have not yet come across a similar denial from Dubai. As the saying goes, there is no smoke without fire.

So, what are the implications of that?

If the complaint made turns out to be true, this is a sad reflection on present day Mauritius and the foreign state. Then “something is indeed rotten in the state of Denmark!”

And what do you think of the other provisions of the Legal and Judicial Provisions Act that give the attorney general the right to dismiss members of the Law Reform Commission?

Quite frankly, I do not know the reason behind these new provisions. There may very well be one. What I do know is that political appointees and political nominees are not normally insulated from the sphere of political influence. Political appointees and political nominees may be revoked in the same manner as they were appointed in the first place. This is the rule of thumb.

The same legislation takes the attorney general out of the Bar Council. Why?

The attorney general was never known to take any active part in the deliberations of the council. During my time there, the then attorney general attended only once or twice, took a rather short-lived interest in some of the deliberations and even volunteered to pay his dues as a member of the association. But that was a one-off situation. Otherwise, over the last 50 years, the AG has not taken any interest in the deliberations of the council or the fate of the association or that of its members.

But by law the attorney general was the ex-officio deputy chairman of the council. Isn’t his pulling out symbolically harmful to the Bar Council?

Not really because de facto he never took an active part. And I feel that it is desirable that the council should only be composed of elected members. The membership of the council has jumped from six to eight. I don’t see how the AG’s withdrawal will affect the deliberations or the work of the council. He had already pulled out a long time ago…

He was there symbolically. Why did he pull out now?

The present incumbent probably felt that he had no interest or may have felt conflicted. At times, there has been tension and friction between the government of the day and the council or its chairman. In the case of Sanjeev Teeluckdharry, the AG may have felt conflicted when he was joined as a party to the court proceedings on account of his statutory position on the council. But the question is this: he is the main legal adviser to the government. Now, can the main legal adviser of the government of the day be the ex-officio deputy chairman of the Bar Council? Don’t forget that there have been frictions. It was so during my own first tenure as chairman and I had to seek the intervention of the chief justice and, at a later stage, I was so fed up that I even resigned… but was re-elected…

Last week, you pulled out of the complaints and ethics committee of the Bar Council, “following comments that were made in Weekly”. What exactly are the comments you took such an exception to? All Hervé Duval said was that the objections you made at the press should have been made at that forum.

I did make the very same points at the special general meeting of the Bar Council. But I purposely refrained from commenting on pending court cases as Hervé had by a personal letter invited both Désiré Basset and I to attend, although we both do hold briefs for Sanjeev Teeluckharry against the council and the association. Had Hervé not written personally to both of us, I would not have attended the special general meeting of the Bar Council. But I attended and I did make my concerns clear to one and all. I said first of all that I did not want to make it a personal issue…

But you did.

I did not. And after being interrupted by the ‘moderator’, I managed to catch the microphone again and I then went on to explain why I opposed section B of the proposed rules as being (1) repugnant to s13 of the Act and also (2) on the ground that the council and the association might be civilly liable towards a suspended member.

What is all this fuss about anyway? The Bar Council is saying that they are not bringing in new rules but simply implementing those that already exist.

No. That is wrong. They are bringing in a new set of draft rules which are quite different from the rules that appear in the Schedule to the Mauritius Bar Association Act. The rules made by the council have to conform to the Act. Section 13 makes a clear distinction that if an offence constitutes a serious breach, it is beyond the remit of the council. The council is statutorily bound under s13, following a preliminary investigation, to refer all serious breaches of the code of ethics to the Supreme Court once the council has formed the view that the breach appears to be a ‘serious breach’ of the code.

Isn’t that what they are doing?

No. They are trying to introduce new rules that would enable them to suspend a member after referral of such a ‘serious breach’ to the court; which they cannot do under section 13 as it now stands. This is an issue that has been raised before the court. I am entitled to say, as a former chairman of the Bar, and not just because Sanjeev Teeluckdharry is my client, that these are issues of law to be thrashed out in the Supreme Court.

But you know that your client, Teeluckdharry, has three or four cases against him.

It doesn’t matter how many cases there are. I am not concerned with Teeluckdharry’s cases. My concern is that this draft is repugnant to section 13 of the Bar Association Act. It goes much beyond the powers conferred by Parliament upon the council. This is the main point which I have opposed.

Are you saying that the Bar Council is acting illegally?

Yes! Of course!

So they cannot suspend members pending a court case?

Of course, they can’t! This is the whole purpose of the pending applications for leave to apply for a judicial review and for an interim (which was declined) and an interlocutory injunction (which is still pending). Of course, they are acting illegally. There are two pending applications, an application for a judicial review and another before the Judge in Chambers. And, when you look at section 13, it says clearly and in express and mandatory terms that the council cannot deal with a “serious breach” of etiquette; the council is bound to refer it to the Supreme Court by means of a statutory referral and then it’s for the court to deal with it. When that is the case, it’s out of the hands of the council, unless the council is called upon to sustain it before the court.

What exactly are the functions of the Bar Council?

There are two main functions which conflict with each other. On the one hand, the Bar Council should ensure the welfare of the members of the association and uphold the independence and dignity of the Bar while, on the other hand, it also exercises restricted disciplinary powers over the members of the association for minor breaches of the code of ethics.

How does this conflict with the new rules?

The new proposed rules state that following a referral for a serious breach, the council shall have the power to suspend members. This is repugnant to section 13 of the Act which mandatorily provides that any “serious breachshall be referred to the court. Which means that the council cannot deal with it once it considers the breach to be a ‘serious breach’. Serious breaches are, by law, within the sole province of the court, not of the council.

Isn’t your position weakening the very Bar Council you chaired not so long ago?

No! This is not the first time that members under report have refused to appear before the council. When I was the chairman of the Bar Council, I convened a few members who were under report. Most of them appeared in person and the matter was thrashed out before the council. We devoted a lot of time and resources to paper work and transcribers and, at the end of the day, satisfactory solutions were found and the law was upheld. In two cases, in particular, the members who were then under report refused to appear. This is therefore the third time that this has happened. In both previous instances, under my chairmanship, the council formed the unanimous view that prima facie, after a preliminary investigation, there were indeed serious breaches of the code of ethics and, that being the unanimous view of the council, it was therefore bound by law to refer the matter to court.

And what happened in those cases you referred to court?

I have not even had an acknowledgement from the court!

So what is the point of referring serious breaches to the court?

That does not mean that the council should ride roughshod over s13 of the Act. It cannot presume to arrogate to itself a jurisdiction which the legislature has not bestowed upon it by seeking to sanction breaches of the code which are admittedly serious; when this is by law within the exclusive remit of the court.

Don’t you feel that the council should have some teeth?

It has some teeth.

Don’t you think the milk teeth it has should be allowed to grow into a few permanent teeth?

(Laughs) Section 13 was drawn up by Sir Victor Glover himself. With hindsight, an orthodontist might have drawn up a much stiffer prescription!

What’s wrong with the Bar Council having powers to discipline members?

Nothing. Yousuf Mohamed expressed the same view as mine at the special meeting of the Bar Council. We are agreed on the objective which is to discipline errant colleagues, but then let’s amend section 13 of the Act. Go and lobby the government of the day and the attorney general and have the law amended, for God’s sake! Even the power to disbar colleagues, if that is the present frame of mind… But then, let it also be said that there is a school of thought which says that you are called to the Bar before the court, not before the Bar Council.

You still feel that the Bar Council has two conflicting set of duties, don’t you?

Yes, I do. One is to look after the interests and welfare of members and the other is the exercise of limited disciplinary powers for non-serious breaches of the code of ethics under the ‘some teeth’ formula. There is intrinsically a tension between both functions. There is also a perceptible conflict there.

What is the situation in the UK, for example?

The conflict was detected in the UK a long time ago, which is why these duties have been split. The Bar Council only looks after the welfare and the interests of its members. It is the Bar Standards Board that looks after disciplinary matters.

Is that the way we should go?

Yes, during my time we did have resource persons from the Inns of Court. This is why I disagree with the present methodology. You cannot just change the rules. You need a change in the primary legislation (the Act of Parliament). A change in the secondary legislation (rules made by the Council under enabling authority from Parliament) would be repugnant to s13 of the Act. A Bar Standards Board should be the ultimate goal. It should be similar to what obtains in the UK. It should be independent from the Bar Council, not an emanation of it. Or else, as obtains for the medical profession, for doctors and dentists, let’s go for the equivalent of a Medical Disciplinary Tribunal, which is chaired by a judge of the Supreme Court… 

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