“Rethinking Society and the Legal Profession”

DPP Urges Lawyers to Advocate for Fundamental Rights and Hold Institutions Accountable.

• “Free speech is a cornerstone of democracy, but it must not come at the expense of privacy. The balance must be carefully maintained to prevent misuse,” Antoine Domingue, Senior Counsel, says.

• “When there is no public benefit, privacy must take precedence over sensationalism.”

During the Mauritius Bar Association Annual Conference held on November 29, 2024, and themed “Rethinking Society and The Legal Profession”, prominent figures discussed constitutional reform. The DPP urged updating Section 72 to reinforce prosecutorial independence and collaboration with law enforcement. Senior Counsel Antoine Domingue advocated for broader privacy protections, aligning with international standards, while balancing privacy and free speech. Former judge Vinod Boolell emphasized the need for institutional accountability and judicial oversight to protect constitutional rights. BIZWEEK attended the conference. 

Rudy Veeramundar 

The annual conference of the Mauritius Bar Association, held on November 29, 2024, provided a platform for legal professionals to explore pressing issues under the theme “Rethinking Society and The Legal Profession.” Among the many discussions, the session on Constitutional Reform, which addressed the evolving role of the Constitution in a changing society, stood out. Moderated by Carolyn Desvaux de Marigny, the panel brought together esteemed experts: Rashid Ahmine, Director of Public Prosecutions (DPP); Antoine Domingue, Senior Counsel, and former judge Vinod Boolell. Their insights shed light on the challenges and opportunities in Mauritius’s legal and constitutional landscape.

The Director of Public Prosecutions, Rashid Ahmine, opened the discussion by reflecting on the historical evolution of the DPP’s office. He traced its roots to 1964, highlighting its establishment as a means to separate prosecutorial authority from political influence. Rashid Ahmine elaborated, “The creation of the DPP’s office was a deliberate move to ensure independence in prosecutorial decision-making, with security of tenure and qualifications equivalent to those of a judge.” However, he emphasized that the current framework, particularly Section 72 of the Constitution, requires modernization to meet contemporary challenges.

Ahmine identified key issues, including the ambiguity in prosecutorial powers. He noted that “while Section 72 establishes the DPP as the apex prosecuting authority, certain provisions allow law enforcement agencies to prosecute independently, creating a fragmented approach.” Highlighting the need for a unified prosecutorial structure, he added that “the Constitution must unequivocally establish the DPP as the sole prosecuting authority to remove any ambiguity and ensure coherence.”

The DPP proposed a more active role for his office in investigations, advocating for prosecution-led processes. “Modern trends in criminal justice emphasize the importance of the DPP guiding investigations from the outset. This ensures that evidence is collected lawfully and efficiently, reducing delays and resource wastage,” he said. Rashid Ahmine also stressed the need for express constitutional provisions allowing the DPP to direct and supervise investigations, arguing that “without such powers, investigations often lack oversight, leading to gaps that compromise justice.”

He lamented the lack of collaboration between institutions, recalling instances where law enforcement acted independently, sometimes contrary to constitutional principles. “We have seen cases where investigations proceed without proper oversight, leading to evidence gaps and procedural delays. This must change,” he asserted. He also pointed out the legal profession’s role in defending constitutional rights, remarking that “lawyers in Mauritius need to be more vocal in advocating for fundamental rights and holding institutions accountable.”

Senior Counsel Antoine Domingue shifted the focus to human rights, particularly privacy protections under Sections 3C and 9 of the Constitution. He argued that these provisions are outdated, offering limited protection by focusing narrowly on property and home. “Our Constitution safeguards privacy primarily against invasion of property, but it does not account for broader aspects such as personal and family life,” Domingue elaborated.

Drawing comparisons with international standards, Antoine Domingue highlighted Article 8 of the European Convention on Human Rights, and Article 17 of the International Covenant on Civil and Political Rights. “These frameworks provide comprehensive protections for privacy, recognizing it as a fundamental right in democratic societies,” he explained. He further noted that Mauritius’s Constitution, adopted in 1968, needs significant updates to align with these benchmarks.

The Senior Counsel also addressed the tension between privacy and freedom of speech. “Free speech is a cornerstone of democracy, but it must not come at the expense of privacy. The balance must be carefully maintained to prevent misuse,” he stated. Citing examples, he warned against cases where public curiosity overrides individual dignity, adding that “when there is no public benefit, privacy must take precedence over sensationalism.”

Antoine Domingue concluded with a call for pre-emptive legal measures to protect privacy: “Judges must be empowered to take urgent actions to prevent breaches of privacy, rather than merely addressing damages after the fact. This proactive approach is essential in a rapidly evolving world.”

Former judge Vinod Boolell offered a judicial perspective, focusing on the practical challenges of ensuring accountability within the justice system. He emphasized the importance of clear prosecutorial powers, stating that “the Constitution must explicitly designate the DPP as the sole authority for initiating prosecutions. This clarity is essential to prevent overlap and inefficiencies.”

The former judge reflected on his experience, noting the erosion of institutional collaboration: “In the past, there was mutual respect and cooperation between the DPP and law enforcement. Today, we see a lack of coordination, which undermines the justice system.” He cited instances where law enforcement failed to consult the DPP during investigations, leading to procedural flaws. “When investigations are mishandled, it is the justice system that suffers,” he said.

He also underscored the judiciary’s role in safeguarding constitutional rights. “Judges must act as guardians of the Constitution, ensuring that fundamental rights are not violated. This requires vigilance and a commitment to justice,” he asserted, advocating for reforms to strengthen judicial oversight, and accountability mechanisms.

The panellists converged on the need for comprehensive constitutional reforms to address the gaps in Mauritius’s legal framework. From enhancing the DPP’s powers to expanding privacy protections and fostering institutional accountability, the recommendations reflected a shared vision for a more robust justice system.

Moderator Carolyn Desvaux de Marigny summarized the session: “Our Constitution is a living document. It must evolve with society to remain relevant and effective. The legal profession has a crucial role to play in driving this evolution.”