It has been reported that Mr Satyajit Boolell SC, Director of Public Prosecutions of the Republic of Mauritius, has been the subject of an attempt by Police to arrest him on a charge of swearing a false affidavit. It was held that the warrant for arrest was unlawful and Mr Boolell remains at liberty, although allegations against him persist.

Proper observance of the rule of law requires that lawfully prescribed procedures that are necessary, reasonable and proportionate be followed whenever a person is accused of having engaged in unlawful conduct.

The power of arrest is to be exercised judiciously. In Donaldson v Broomby (1982) 5 A Crim R 160 @ [1], Deane J [then in the Federal Court of Australia, later a Justice of the High Court of Australia and still later Australia’s Governor-General] highlighted the nature of arrest and the significance of its infringement upon rights when he said:

“Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny.”  

There are alternative means available to bring suspected persons before the courts. It is difficult to comprehend how seeking to arrest Mr Boolell in the present circumstances in order to bring him before a court could be justified as a proper exercise of Police discretion, given the nature of the allegation, the position he holds, his personal circumstances and the timing of the attempt.

It is even more disturbing to note that in this case an attempt was made to arrest Mr Boolell despite the existence of a court injunction prohibiting such action.

This indicates mala fides on the part of law enforcement authorities and leads to suspicion of improper motives behind their actions.

If the Government, by its actions, is attempting to remove the Director of Public Prosecutions from office, even indirectly by pressure and harassment, the lawfully prescribed procedures in this case require observance of Article 93 of the Constitution of the Republic of Mauritius.

Article 93(2) to 7(a) provides:

(2) Any such person may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be removed except in accordance with this section.

(3) Any such person shall be removed from office by the President if the question of his removal from that office has been referred to a tribunal appointed under subsection (4) and the tribunal has recommended to the President that he ought to be removed from office for inability as aforesaid or for misbehaviour.

(4) Where the appropriate Commission considers that the question of removing any such person ought to be investigated-

(a) the President, acting in his own deliberate judgement, shall appoint a tribunal which shall consist of a chairman and not less than 2 other members, being persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from such a court; and

(b) that tribunal shall enquire into the matter and report on the facts to the President and recommend to the President whether he ought to be removed under this section.

(5) Where the question or removing any such person has been referred to a tribunal under this section, the President, acting in his own deliberate judgement, may suspend him from performing the functions of his office and any such suspension may at any time be revoked by the President, acting in his own deliberate judgement, and shall in any case cease to have effect if the tribunal recommends to the President that he should not be removed.

(6) The officers of which this sections applies are those of Electoral Commissioner, Director of

Public Prosecutions, Commissioner of Police and Director of Audit.

(7) In this section "the appropriate Commission" means-

(a) in relation to a person holding the office of Electoral Commissioner or Director of Public Prosecutions, the Judicial and Legal Service Commission;”

It is clear, therefore, that if any move is sought to be made to remove Mr Boolell from office as Director of Public Prosecutions, the Judicial and Legal Service Commission must first be of the view that the question of removing him ought to be investigated. Then the President must appoint a tribunal, as prescribed, and the further procedures followed.

It should be noted that the treatment of Mr Boolell is under close scrutiny by legal colleagues within and without Mauritius and the subject of ongoing comment in various fora around the world.

Nicholas Cowdery AM QC

Visiting Professorial Fellow and Adjunct Professor of Law

Former Director of Public Prosecutions for New South Wales, Australia

Former President, International Association of Prosecutors

Chairman of the Senate, International Association of Prosecutors

Inaugural Co-Chair, Human Rights Institute of the International Bar Association

Expert Legal Consultant to the Commonwealth Secretariat

Member of the Governing Board of the Rule of Law Institute of Australia