For the first interview of this year, we talk to Antoine Domingue, SC, a lawyer known for his straight talk. He talks about the legal and political issues the country is dealing with and sheds light on the police force, the 'Kistnen Papers' and the possible implications of these on the country.
Last year ended on a very negative note with a series of events that seem quite worrying. First, a minister being dragged to court and forced to stand in the dock. What do you retain from all this?
It's not the first time that a serving minister has been privately prosecuted. There is the well documented precedent of late Alex Rima who was privately prosecuted on a charge of larceny and who was convicted and sentenced. His conviction and his sentence were upheld by the court of appeal, which led to his revocation from office.
In this case, the minister of commerce who is being prosecuted is still in office and is still a member of the national assembly. Shouldn't he have resigned or been revoked?
The present prime minister did not resign nor was he revoked when he was prosecuted before the Intermediate Court on a charge of having committed a corruption offence. The presumption of innocence is still enshrined in the constitution. Let's wait for the proceedings to run their course. Proceedings may be discontinued or may result in an acquittal.
Why did that same rule apply to former Deputy Prime Minister Ivan Collendavelloo?
Firstly, because the prime minister has reached an altogether different conclusion favourable to his minister and fellow MP following his own inquiries.
Is that statement not likely to intimidate the cops investigating the case?
It may. But it ought not weigh in the balance. Even if the prime minister has improperly sought to throw his weight around. These are seasoned enquiring officers of the CCID. The nec plus ultra [the best of the best - Ed] of the Mauritian Police Force. We should give them credit for that. Also, on account of a similar stand following the Wakashio private prosecution before the district court of Mahebourg. Thirdly, because the minister is a fellow MP in the same constituency as the prime minister and his revocation may not be without serious political consequences for the prime minister himself and for his political party. 'Nemo judex in causa sua' [No-one is judge in his own cause - Ed].
What about the former police commissioner charged in a corruption case? Is that also OK?
That is not unprecedented either. Former CP Dayal was prosecuted before the Intermediate Court after his dismissal as CP following disciplinary proceedings before a constitutional tribunal consisting of former Chief Justice Rajsoomer Lallah and two serving Puisne Judges Matadeen and Lam Shang Leen. The report was not made public. Dayal was thereafter handsomely indemnified by the State in proceedings before the mediation division of the Supreme Court.
Be that as it may, don't you find the law-and-order situation worrying?
On that front, it's obvious that killers, or even serial killers, are on the rampage; one or more homicidal maniacs are still very much at large in spite of all the exertions of the police. The manner in which the initial police inquiry was conducted in the Kistnen case (treated as a suicide and not as a homicide case) must surely have posed a number of hair-raising questions to the CP and the PM, who are directly responsible for law and order. It is regrettable that the reasons for the initial police blunderbuss are yet to be elucidated and publicly explained at a proper press conference with the right questions being put and answered.
What about a prime minister being investigated by the ICAC in another corruption case?
The ICAC is merely an investigatory mechanism. No more. The matter will eventually have to be opined upon by the director of public prosecutions (DPP) and his law officers. As a former French ambassador once aptly remarked about the POCA, "C'est la première fois qu'un gouvernement vote une loi d'exception contre lui même!" Let it bear the brunt of it, the more so as there is now a Financial Crimes Division of the Supreme Court which has been set up to deal with such offences.
Having yourself as a senior counsel defended several cases of human right abuse pro bono. What do you think of the work of the 'Avengers'?
They are being true to their oath and they have so far provided valuable assistance to the court in the judicial inquiry where they represent Mrs Simla Kistnen on a pro bono publico basis. This is in accord with the finest traditions of the Bar. Law officer Neerooa's performance at the judicial inquiry must also be underlined. The profession and the public are thankful to them all.
This group of lawyers is openly talking about a mafia loose in the country. A proper evaluation of the situation in the country or - as the police commissioner said - they are trying to create a psychosis?
Given the chain of events which we have witnessed of late, any part-time Sherlock Holmes endowed with a modicum of common sense would have already discerned a pattern and drawn the inescapable conclusions therefrom.
As soon as the police commissioner agreed to meet the lawyers 'Avengers', to discuss the way forward, the deputy commissioner held a press conference to talk about the same case. Is that customary or is the police running as a state within a state?
I cannot answer for the police. But I have personally observed from close quarters that there may very well be a state within a state to the extent that there are a few police officers who have acted and who are acting as political agents. Re: the attempt to illegally arrest and detain the DPP, more recently the attempt by some police officers to arrest Mr Gérard Sanspeur, which should routinely have elicited some form of disciplinary action. The same applies to the arrest and detention of a detainee before the recording of the declaration and statement against her by a former member of the ICTA, who has since resigned ignominiously. Such rogue officers should be identified, interdicted and disciplined by their responsible officer (CP) and by Public and Disciplined Forces Service Commission (DFSC). Otherwise, command responsibility will kick in and the CP may be held responsible.
"If not relevant to the pending petitions, the 'kistnen papers' should nevertheless be closely looked into by the electoral commissioner as they may disclose illegal practices which may result in disenfranchisement, amongst other things. Criminal proceedings may also ensue."
What about the Independent Police Complaints Commission?
In appropriate cases, such rogue officers should also be investigated by the IPCC and promptly brought to justice. Pious wishes about the eradication of black sheep from the police force (which is a disciplined force), do not suffice if words are not followed by deeds. To my mind, the same applies to the oft repeated mantra that "the ICAC pas guette figure!" and that CCID's recent mantra that it is unimpressed by MPs and ministers.
Going back to the Kistnen case, The DPP said that for the charge against Yogida Sawmynaden should have been a formal one. What does that mean in layman terms?
I have no inkling as to what the DPP has in mind, either from a procedural or substantive standpoint. On occasion arising, you should ask him to clarify. If this is indeed his thinking, then he should take over the proceedings and do as he knows best. l Is there a risk that the charges are dropped because of a technical mistake? If we ever go down that road, it will suffer the same fate as the Wakashio private prosecution.
That is ministers getting away with it?
No. That would be a non sequitur. The dis- continuance of the proceedings at the instance of the DPP does not bar further criminal proceedings. Any offenders may still be brought to justice after a thorough police inquiry.
"I have personally observed from close quarters that there may very well be a state within a state to the extent that there are a few police officers who have acted and who are acting as political agents."
What about the 'Kistnen Papers' the opposition seems to be so excited about? Are they likely to lead anywhere? I mean the electoral petitions have already been filed and the deadline is over. Are they still relevant?
If not relevant to the pending petitions they should, in my view, nevertheless be closely looked into by the Electoral Commissioner and the Electoral Supervisory Commission as they may dis- close illegal practices under the Representation of People Act which may result in disenfranchisement, amongst other things. Criminal proceedings may also ensue.
The question everyone is asking is: are we likely to see justice in 2021 in the Angus road, Kistnen and fictional employment case? What is your prediction knowing how our institutions work and how determined the 'Avengers' and the rest of the population are?
That's anyone's guess. I am not a 'batteur cartes', nor do I wish to indulge in crystal gazing. As I have already said above, our criminal justice system is not one which is infallible, but one which is fair. Fairness demands that politics be kept out of the court room.
How can you do that when the accused is a sitting minister?
"Quand la politique entre au prétoire, la justice en sort". One may agree or disagree with that proposition, but this is my view, and I stand by it.
The Angus Road saga seems so far away since the Kistnen case took on front stage. Is anything likely to come out of it still or aret rever kamarad?
Ultimately, everything resides in the hands of the DPP and of the court. Both are independent and appointed by the Judicial and Legal Service Commission. Both may be counted upon to be true to their oath of office and their judicial oath.
In the meantime, how can senior lawyers like yourself contribute to help the country see justice in the alleged corruption and murder cases it is dealing with?
By agreeing to be interviewed by the press as I have repeatedly done. On occasion arising by appearing pro bono publico whenever that is mandated by the need to uphold the rule of law. All the members of the 'inner' and of the 'utter' Bar must play their part in the process in accordance with their oath of office. The inner Bar should not shun public debate. Its members should hold public conferences. It should publicly espouse certain causes such as the pressing need for a Freedom of Information Act and for Public Interest Litigation.
What is the Public Interest Litigation about?
It was first introduced in India. It enables any citizen who would otherwise have no sufficient interest to raise any question of public interest, more particularly touching upon any breach of a fundamental right, before the court without any need to resort to the normal procedures. The court may be seized by a mere letter, whereupon it may immediately proceed to hear and determine the matter.
The prime minister's message to the nation was more like a diatribe against opponents than a message of hope and encouragement to the nation. How bad is this year likely to be?
It will be what we collectively choose to make of it. When you are in a hole stop digging! Let's collectively work towards getting out of the hole. Insofar as the PM's message is concerned, it contains a number of pious wishes and it contrasts with what we had hitherto grown accustomed to. If I am not mistaken the prime minister also spoke about the need for transparency. This is what we have all been clamouring for. This is what was promised to us in the MSM political manifesto, but as Georges Pompidou quite rightly observed in his monography Le Noeud Gordien, "Les programmes, tout le monde en a, et chacun sait ce qu'il en advient!"