Mohit v. The Director of Public Prosecutions of Mauritius (Mauritius)

Factual and Procedural Background

The Appellant, a private citizen of Mauritius, repeatedly attempted to institute private criminal proceedings against a senior political figure (“Political Figure”) for allegedly harbouring an offender (“Individual A”) connected to a series of violent crimes committed in 1996. Each time the Director of Public Prosecutions (“DPP”) exercised the constitutional power under section 72(3)(c) to discontinue the private prosecutions by entering a nolle prosequi. The DPP supplied reasons only on the first occasion (19 July 2001), citing the risk of prejudicing an imminent “main case” involving Individual A.

After three separate discontinuances, the Appellant sought leave in the Supreme Court of Mauritius to judicially review the DPP’s decision. On 30 September 2003 a two-judge bench held that the DPP’s decisions to discontinue or not to prosecute were not justiciable. A further application was dismissed on 14 September 2004 as an abuse of process, the Supreme Court applying its earlier ruling. The present appeal challenges the correctness of those two Supreme Court decisions.

Legal Issues Presented

1. Whether, in principle, a decision by the DPP of Mauritius to discontinue a private prosecution under section 72(3)(c) of the 1968 Constitution is amenable to judicial review.
2. Whether the Supreme Court of Mauritius erred in holding that such decisions are absolutely immune from court scrutiny.

Arguments of the Parties

Appellant’s Arguments

• The DPP is a constitutionally created public officer; therefore, like any other public officer, the DPP’s powers must be exercised lawfully, properly and rationally and are subject to review.
• The reasoning adopted by the Supreme Court in Lagesse v DPP should be rejected in favour of the approach set out in Matalulu v DPP, which recognises limited but real grounds for reviewing prosecutorial discretion (illegality, bad faith, fettering, acting under improper influence, etc.).
• The availability of civil remedies or political mechanisms is not an adequate substitute for judicial oversight when a constitutional power is exercised unlawfully.

DPP’s Arguments

• The decision to prosecute, not to prosecute, or to discontinue is inherently polycentric, involving evidential, policy and public-interest considerations that the courts are institutionally unsuited to examine.
• International authorities (e.g. Maxwell v R, Keung Siu Wah) and historic English doctrine regarding the Attorney General’s nolle prosequi show that such decisions are traditionally non-justiciable.
• Section 72(6) guarantees prosecutorial independence, and exposing decisions to review would undermine that constitutional safeguard and blur the separation of powers.

Table of Precedents Cited

Court’s Reasoning and Analysis

The Board began with the orthodox rule in Datafin that statutory powers are presumptively reviewable. It found no “compelling reason” in the Mauritian Constitution to displace that rule. Key steps in the analysis were:

• Source of power. The DPP’s authority originates in section 72 of the 1968 Constitution, not in the royal prerogative. Consequently, analogies with the English Attorney General’s prerogative nolle prosequi (e.g. Gouriet) are inapposite.
• Independence vs. immunity. Section 72(6) guarantees that the DPP acts free from external direction. However, constitutional independence does not equal absolute immunity from legal scrutiny; section 119 expressly preserves the courts’ jurisdiction to ensure that constitutional functions are lawfully exercised.
• Comparative jurisprudence. The Board preferred the flexible, limited-grounds approach in Matalulu over the Supreme Court’s reliance on Lagesse, Maxwell and Keung Siu Wah. It noted that in most Commonwealth jurisdictions prosecutorial decisions are reviewable, albeit on a high threshold (illegality, bad faith, improper purpose, fettering, acting under external influence, etc.).
• Separation of powers concerns addressed. Judicial review does not require courts to decide whom to prosecute; it merely ensures that the prosecutorial decision is made lawfully and rationally. If a defect is found, the matter is remitted to the DPP for reconsideration, thus respecting institutional roles.
• Practical considerations. While victims may have civil remedies, and the DPP can theoretically be removed for misbehaviour, those avenues do not replace the need for judicial review when constitutional powers are allegedly abused.
• Absence of a duty to give reasons. The Board reaffirmed English authority that the DPP is generally not obliged to give reasons, though may choose to do so; nevertheless, lack of reasons does not bar review—courts may draw appropriate inferences.

Holding and Implications

HOLDING: The appeals are ALLOWED.

The Supreme Court judgments of 30 September 2003 and 14 September 2004 are set aside. The Appellant’s applications for judicial review are remitted to the Supreme Court for reconsideration consistently with the principles stated by the Board. The DPP is to pay the Appellant’s costs in relation to the first application; no further cost orders were made.

Implications: The decision establishes that, under the Mauritian Constitution, the DPP’s decisions to discontinue or decline prosecutions are in principle justiciable on limited public-law grounds. While the threshold remains high, the ruling aligns Mauritius with most Commonwealth jurisdictions and clarifies that prosecutorial independence does not entail absolute legal immunity. No new substantive causes of action were created, but the scope of judicial supervision of prosecutorial discretion in Mauritius has been definitively expanded.