1.The basis of the decision is clearly wrong: The ground-breaking case of Mohit v DPP (2006) UKPC

It appears that Government is relying on previous decisions dating back to 2003 notably correspondence of the Solicitor General on prosecutorial commissions.

The fallacy of this argument is laid bare by the following:

(i) The previous governments never went ahead with the idea and rightly so;

(ii) Since 2003, we have had the Privy Council judgment in the case of Mohit v DPP UKPC 2006. Prior to Mohit, it was thought that some of the decisions of the DPP could not be subject to review by the Courts. The case of Mohit has made it clear that all decisions of the DPP can be judicially reviewed. The relevant extract is as follows:

The DPP cannot, in the opinion of the Board, rely on the immunity enjoyed, at any rate in the past, by the English Attorney General when exercising the prerogative power to enter a nolle prosequi since he is not the Attorney General, he is not (like the Attorney General) answerable to Parliament, he has no prerogative power, his power derives from the Constitution and the Constitution does not use the language of nolle prosequi. The power expressly conferred on the Procureur Général to enter a nolle prosequi has never, by that name, been conferred on the DPP. (The Attorney General of England and Wales in practice exercises his power very infrequently: twice in the past 5 years, in each case because of the defendant’s ill health). It has been pointed out that the English DPP, unlike his Mauritian counterpart, discharges his functions under the superintendence of the Attorney General (Prosecution of Offences Act 1985, s 3(1)), but this fact, if of any significance, would tend to weigh against rather than for the reviewability of his decisions, as providing a potential safeguard against abuse through the Attorney General’s answerability to Parliament. Yet it has been common ground for some years that decisions of the English DPP are in principle reviewable, and the same view has been taken, for very much the same reasons, under the Constitution of Ireland: see McCormack v Curran [1987] ILRM 225; H v Director of Public Prosecutions [1994] 2 IR 589; Eviston v Director of Public Prosecutions[2002] IESC 43. It cannot, in the Mauritian context, be accepted that the extreme possibility of removal under Section 93 of the Constitution provides an adequate safeguard against unlawfulness, impropriety or irrationality. There is here nothing to displace the ordinary assumption that a public officer exercising statutory functions is amenable to judicial review on grounds such as those listed in Matalulu. The Board would respectfully endorse the cited passage from the Supreme Court of Fiji’s judgment in that case as an accurate and helpful summary of the law as applicable in Mauritius.

(iii) Since the case of Mohit, the ODPP has been furnishing reasons for its decisions to enable potential litigants to challenge its decisions.

(iiii) Two cases of judicial review of the decision of the DPP have been entered since the case of Mohit namely the cases of Jeekarajee v DPP and Malhotra v DPP. Both have been unsuccessful. There is accordingly no basis to say that the DPP’s decisions are not transparent as to warrant an amendment to the Constitution.

2. A drastic constitutional amendment is required

Section 72 (6) provides that (6) in the exercise of the powers conferred upon him by the Constitution, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.

According to section 47, an amendment to Section 72 of the Constitution requires a three quarters majority. We must point that the independence of the DPP forms part of the spirit of the Constitution and the model of democracy that underpins the Constitution. The European Court of Human Rights in the case of Guja v Moldova (2008) has held that “in a democratic society both the courts and the investigation authorities must remain free from political pressure” and that “it is in the public interest to maintain confidence in the independence and political neutrality of the prosecuting authorities of a State”.

By trespassing on the independence of the DPP, this far-reaching amendment may threaten the fabric of our democracy. On the authority of the Privy Council case of Khoyratty v State, amendments to the Constitution which have an impact on our democracy require votes of all the members of the Assembly as well as a referendum beforehand. The majority may be required for the present amendment.

3. The amendment will violate international standards

The Bordeaux Declaration, adopted by the Consultative Council of European Judges and the Consultative Council of European Prosecutors in 2009, offers guidance that:

The independence of public prosecutors is indispensable for enabling them to carry out their mission. It strengthens their role in a state of law and in society and is also a guarantee that the justice system will operate fairly and effectively and that the full benefits of judicial independence will be realised. Thus, akin to the independence secured to judges, the independence of public prosecutors is not a prerogative or privilege conferred in the interests of the prosecutors, but a guarantee of a fair, impartial and effective justice that protects both public and private interests of the person concerned.

The Bordeaux Declaration states that prosecutors must “enjoy complete functional independence in the discharge of their legal roles”. In order to “ensure their accountability and prevent proceedings being instituted in an arbitrary or inconsistent manner, public prosecutors must provide clear and transparent guidelines as regards the exercise of their prosecution powers”.

The Bordeaux Declaration further provides that to ensure that public prosecutors have independent status, their position and activities should not be “subject to influence or interference from any source outside the prosecution service itself”. Thus, matters such as “their recruitment, career development, security of tenure including transfer” should be effected only according to the law or by their consent, and their remuneration should be “safeguarded through guarantees provided by the law”.

4. The recent cases of abuse of powers of arrest by the Police and amendments to the PoTA have exposed the dangers of undue influence of the executive on human rights

The recent amendments to the PoTA will have farreaching consequences on the rights of individuals to liberty, freedom of association, freedom of movement. These provisions if left to be applied by the Police, unchecked by the DPP, may lead to abuses. The DPP has in recent cases advised Police and ICAC not to arrest before doing a proper enquiry. The cases of Lutchmeenaraidoo and Trilochun are good examples. Interference in the power of the DPP has direct consequences in unchecked powers of the police to arrest.

5. The new policy may lead to abuse not only by this government but also by future governments

What is worse is that should there be a change in government or a shift in power, the provisions may be used and abused by other governments against the present holders of office.

6. The amendments may lead to a cacophony

It will come to no surprise that defence counsel when defending their clients will plead that the prosecution is biased and not impartial. All these arguments may simply clog the whole of the criminal justice process until the point is decided by the Privy Council. What will happen if the Privy Council decides that the new policy is illegal?

7. Unlike the ICAC, prosecutors are appointed by the Judicial and Legal Service Commission (JLSC)

It appears unreasonable and unsound to subject officers appointed by the JLSC to the scrutiny and control of politically appointed individuals.