01 October 2003

Mauritius: FSPA "Training in Compliance"

The Financial Services Promotion Agency (FSPA) is organising a 1 day Industry Sector Specific Training by Mr Stephen Platt


Understanding Compliance


What is compliance? Who is responsible for compliance? How can your organisation implement good compliance practice? These and other important questions are answered on this unique, highly interactive training day which is designed to equip trainees with the ability to begin to design an internal compliance framework.


There are four Training Days, one for each of the following industry sectors:


Workshop 1


Target Audience: Insurance Sector

Date: 3 November, 2003

Time: 09:00Hrs – 17:00Hrs (including breaks & lunch)

Venue: Le Sirius, 1st Floor

Labourdonnais Waterfront Hotel

Fee/Participant: Rs 6,000


Workshop 2


Target Audience: Global Business/Management Companies

Date: 4 November, 2003

Time: 09:00Hrs – 17:00Hrs (including breaks & lunch)

Venue: Le Sirius, 1st Floor

Labourdonnais Waterfront Hotel

Fee/Participant: Rs 6,000


Workshop 3


Target Audience: Securities/Stockbroking

Date: 5 November, 2003

Time: 09:00Hrs – 17:00Hrs (including breaks & lunch)

Venue: Le Sirius, 1st Floor

Labourdonnais Waterfront Hotel

Fee/Participant: Rs 6,000


Workshop 4


Target Audience: Banking Sector

Date: 6 November, 2003

Time: 09:00Hrs – 17:00 Hrs (including breaks & lunch)

Venue: Le Sirius, 1st Floor

Labourdonnais Waterfront Hotel

Fee/Participant: Rs 6,000


The training will differ according to individual industry sectors


Training Content


Defining Responsibility for Compliance

- The role of the senior management

- The role of a compliance department

- The role of business units/client facing staff

- Achieving effective corporate governance through good compliance practice


Analysing the Role of the Compliance Officer

- The Key Skills and Attributes of an Effective Compliance Officer

- The duties of the Compliance Officer

- Managing Internal and External Relationships

- Reporting Lines


Constructing an Effective Risk Control Framework

- Analysing legal and regulatory rules

- Identifying and mapping risks

- Designing controls and procedures

- Compliance monitoring and testing programs

- Generating management information


Creating an Effective Compliance Culture

- Recognising cultural barriers

- Overcoming cultural barriers

- Staff training

- Understanding human factors in risk management


Training Format


· Full day training sessions

· Use of Multi Media and Video

· Highly interactive

· Extensive use of case studies and generation of group discussion

· Table top group exercises


* Please note that MQA approval is in process for this training and you will be advised once approval is granted.

* Please complete the appropriate registration form and send us by fax or mail by latest Thursday 30 October, 2003

06 January 2003

HKEx: Fund Management in Hong Kong and Singapore

Hong Kong and Singapore are close rivals within the Asia-Pacific region as fund management centres. Hong Kong is somewhat ahead in terms of business volume,although the lead is shrinking. The strategies of each centre are different, although there has been some convergence recently. Opportunities for Hong Kong appear greater, but improvements in policy are needed.

31 December 2001

IMF - Mauritius: A Case Study

"And they (the political parties in Mauritius) seem to recognize that, at the end of the day, they will be left with what they started with: an agricultural colony, created by empire in an empty island and always meant to be part of something larger, now given a thing called independence and set adrift, an abandoned imperial barracoon, incapable of economic or cultural autonomy." 


"They (the Mauritians) have such confidence in their rights, their votes, the power of their opinions."

—V.S. Naipaul, 
The Overcrowded Barracoon

Few sub-saharan African countries have achieved high standards of living. A notable exception has been Mauritius. Yet we had it on the highest possible authority—the economist and Nobel Prize winner James Meade, who prophesied in the early 1960s that Mauritius's development prospects were poor—that Mauritius was a strong candidate for failure, with its heavy economic dependence on one crop (sugar), vulnerability to terms of trade shocks, rapid population growth, and potential for ethnic tensions. History—or, rather, Mauritius—proved Meade's dire prognostication famously wrong.

Are Mauritius's achievements due to favorable initial conditions, good policies—especially openness to trade and foreign investment—sound domestic institutions, or other factors?

Achievements

Between 1973 and 1999, real GDP in Mauritius grew 5.9 percent a year, on average, compared with 2.4 percent for sub-Saharan Africa as a whole (see chart). Through the magic of compounding, the income of the average Mauritian more than tripled over a 40-year period, while that of the average African increased by only 32 percent.
Annual GDP growth has averaged 2.38 percent in sub-Saharan Africa, 5.91 percent in Mauritius
Improvements in human development indicators have been equally impressive. Life expectancy at birth increased from 61 years in 1965 to 71 years in 1996; primary school enrollment increased from 93 to 107 per 100 children of school age between 1980 and 1996, while it decreased from 78 to 75 in the rest of Africa. (Enrollment rates may be higher than 100 percent because of repeaters, adults who are enrolled even though they are not in the age group being measured, and other discrepancies.) The income gap between the richest and the poorest Mauritians has narrowed considerably: the Gini coefficient (a measure of income inequality, with 0.0 representing total equality and 1.0 representing total inequality) declined from 0.5 in 1962 to 0.37 in 1986-87.

High growth rates have been achieved in a stable macroeconomic environment. Between 1973 and 2000, annual consumer price inflation averaged 7.8 percent in Mauritius, compared with more than 25 percent for sub-Saharan Africa as a whole. The unemployment rate declined from nearly 20 percent in 1983 to 3 percent in the late 1980s, although it has since edged up above 7 percent.

Social protection in Mauritius is similar to that seen in the industrial countries: a large and active presence for trade unions, which are able to engage in centralized wage bargaining, and generous social security benefits, particularly for the elderly and civil servants. Social protection is also afforded through price controls, especially on a number of socially sensitive items. In contrast with the member countries of the Organization for Economic Cooperation and Development, however, generous social programs in Mauritius have thus far not necessitated high taxes, reflecting both strong growth and favorable demographics, a large proportion of the population being of working age.

Initial conditions

Did Mauritius grow fast because its inheritance was favorable? A retrospective answer can be provided based on the indicators that have been identified as important for long-term growth. Table 1 shows how Mauritius scores on these indicators, compared with other countries. On the one hand, a number of factors—especially the initial level of income, geography, and commodity dependence—have exerted a drag on long-term growth. For example, Mauritius is disadvantaged by being at least 25-30 percent more distant from world markets than the average African country. On the other hand, favorable demographic developments and very high initial levels of human capital have boosted growth. Formal analysis shows that on balance, however, the disadvantages outweigh the advantages: initial conditions have slowed growth by about 1 percentage point a year relative to the average African country and by nearly 2 percentage points relative to the fast-growing developing economies of East Asia.
Table 1
Were initial conditions in Mauritius better than those in other developing countries?
Mauritius Africa Fast-growing developing economies1Other developing economies

GDP catch-up28.727.297.90  7.85  
Life expectancy in years (1970)60.4041.6057.10  51.90  
Ethno-linguistic fractionalization30.580.640.42  0.32  
Population growth40.97-0.090.82  0.33  
Primary commodities as fraction of total exports0.290.180.09  0.12  
Fraction of area in tropical climate10.890.69  0.59  
Landlocked500.330  0.11  
Remoteness from world economic center (kilometers)611,2499,1839,464  8,633  

Sources: Jeffrey D. Sachs and Andrew M. Warner, 1997, "Sources of Slow Growth in African Economies," Journal of African Economies, Vol. 6, pp. 335-76; and author's calculations.
1China, Hong Kong (SAR), Indonesia, Malaysia, Singapore, and Thailand.
2Log of real GDP per economically active population in 1965.
3Probability (in 1960) that two randomly selected people from a country did not belong to the same ethnic or linguistic group.
4Growth of working-age population minus growth of total population between 1965 and 1990.
50 if not landlocked. For groups, figure depicts the percentage of countries landlocked.
6Average distance to export partners, weighted by exporters' GDP share in the world.
Globalization strategy

Perhaps the most interesting aspect of Mauritius's development has been its trade and development strategy. At one level, Mauritius can be seen as a case study proving that openness and an embrace of globalization are unambiguously beneficial. Since the mid-1980s, the volume of goods imported and exported by Mauritius has grown rapidly, at annual rates of 8.7 percent and 5.4 percent, respectively. Its openness ratio (the ratio of trade-in-goods to GDP) has increased from about 70 percent to 100 percent, while Africa's openness ratio has stagnated at around 45 percent. Particularly strong was the growth in manufacturing exports originating predominantly in Mauritius's export-processing zone.

There are three possible explanations for the impressive growth of trade: first, liberal trade policies; second, trade policies that, although interventionist, did not distort incentives in favor of the import-competing sector; third, openness to foreign direct investment.

The first explanation does not fit the facts. During the 1970s and 1980s, protection in Mauritius was high and dispersed throughout the economy. In 1980, the average tariff exceeded 100 percent, and it was still very high—65 percent—at the end of the 1980s. Moreover, until the 1980s, there were extensive quantitative restrictions in the form of import licensing, which covered nearly 60 percent of imports.

Clearly, by the usual measures, Mauritius had a highly restrictive import regime. But why did this not translate into an export tax and, hence, a tax on all trade? Not only was an effective institutional mechanism—the export-processing zone—in place but Mauritius's own domestic policies and the policies of its trading partners ensured very high returns to the export sector, effectively segmenting it from the rest of the economy and discouraging the diversion of domestic resources to the country's inefficient import-competing sector. First, all imported inputs entered the country duty free, ensuring that the export sector's competitiveness on world markets was not undermined by costly inputs. Second, a variety of tax incentives were provided to firms operating in the export-processing zone, which had the effect of subsidizing exports. Third, until the mid-to-late 1980s, labor market conditions in the export sector were different from those in the rest of the economy (in the import-competing sector, in particular): employers in the export-processing zone had greater flexibility to discharge workers, and the conditions of overtime work were more flexible. Most important, although the legal minimum wage was the same in the export-processing zone as in the rest of the economy, the minimum wage for women was lower than that for men. Because the export-processing zone employed a disproportionate number of women, their lower wages also implicitly subsidized exports, encouraging producers to concentrate on the export, rather than on the import-competing, sector.

However, these interventionist policies did not, on their own, fully offset the anti-export bias created by restrictive import policies. Preferential access provided by Mauritius's trading partners in the sugar, textile, and clothing sectors, which together accounted for about 90 percent of Mauritius's total exports, also implicitly subsidized the export sector and was responsible, to a large degree, for overcoming the anti-export bias of the import regime (Table 2).
Table 2
Import tax and offsetting export subsidies 
(percent)
Export subsidies

ImportFrom domestic policy2

From preferential access

Total

tax1Case ACase BSugarApparelTotalCase ACase B

1980s127  32     39108  15528491
1990s65   7      2098  28475466

Source: Author's calculations.
1To capture the resource allocation effects, import protection is measured in effective rather than nominal terms.
2Subsidy from domestic policy refers to the difference between wages in export-processing zone (EPZ) and those in manufacturing (Case A) and in the economy (Case B).
Since it gained its independence in 1968, Mauritius has been guaranteed a certain volume of sugar exports to the European Union (EU) at a price that was, on average, about 90 percent above the market price between 1977 and 2000. The resulting rents to Mauritius have amounted to a hefty 5.4 percent of GDP, on average, each year and as much as 13 percent in some years. From a macroeconomic perspective, these rents have played a crucial role in sustaining high levels of investment and explain why domestic, rather than foreign, savings have financed domestic investment during Mauritius's growth boom.

The preferential access given to textile and clothing exports from Mauritius has been equally important. The international regime known as the Multifiber Arrangement (MFA) was established by the United States and the European Union to limit imports of textiles and clothing by awarding country-specific quotas. As a result, imports were redistributed among the countries that produced these goods, to Mauritius's benefit.

The third explanation ascribes Mauritius's success to its openness to foreign direct investment, facilitated by the creation of the export-processing zone. The latter, a resounding success, has transformed the Mauritian economy. Since 1982, output has grown by 19 percent a year, on average, employment by 24 percent, and exports by 11 percent. The export-processing zone accounts for 26 percent of GDP, 36 percent of employment, 19 percent of capital stock, and 66 percent of exports. Moreover, a growth-accounting analysis demonstrates the exceptional productivity of the zone. During 1983-99, total factor productivity growth in the export-processing zone averaged about 3.5 percent a year, compared with 1.4 percent in the economy as a whole. In the 1990s, productivity growth in the export-processing zone was remarkable, averaging 5.4 percent a year.

But these explanations, although plausible, do not really get at the underlying causes of Mauritius's trade and growth performance. Other developing countries had similar preferential trade opportunities and also created export-processing zones. But many of them failed where Mauritius succeeded. Clearly, there were deeper reasons for Mauritius's success.

Institutions

To a considerable extent, strong domestic institutions have contributed to Mauritius's success (Table 3). Two examples illustrate the role played by domestic institutions. Mauritius successfully overcame its macroeconomic imbalances in the early 1980s. Macroeconomic adjustment was, in fact, implemented by three different governments of divergent ideological persuasions: this presupposed consultation and a recognition of the need to develop a national consensus in favor of adjustment. Further, a culture of transparency and participatory politics ensured that early warning signals and feedback mechanisms were in place, allowing emerging economic problems to be tackled at an early stage. Second, the export-processing zones established by other African countries may have provided the same incentives for investors but, unlike the zone in Mauritius, they have been plagued by rent seeking, abuses, and leakages deriving from weak administration.
Table 3
Quality of institutions in Mauritius and other countries
  Mauritius      Africa    Fast-growing
developing economies
Other
developing economies

ICRGE17.23    4.546.864.29
Protection against expropriation28.06    5.758.546.47
Democracy30.75    0.250.470.51
Participation index30.8    0.300.490.44

Sources: International Country Risk Guide index, the PRS Group; Keith Jaggers and Ted Robert Gurr, 1995, Polity III: Regime Type and Political Authority, 1800-1994 [computer file] (Boulder, Colorado: Keith Jaggers/College Park, Maryland: Ted Robert Gurr); Inter-university Consortium for Political and Social Research, distributor, 1996 (Ann Arbor, Michigan).
1ICRGE (International Country Risk Guide) index is a measure of the quality of government institutions that affect property rights or the ability to conduct business. It is published by a private firm that provides consulting services to international investors.
2For ICRGE index and index of protection against the risk of expropriation, Mauritius has fitted values. The scale is from 0 to 10, with higher values indicating better institutional quality.
3The participation index measures the extent to which non-elites are able to access institutional structures for political expression. This index, like the one for democracy, ranges from 0 to 1, with higher values denoting better quality.
Special factors

Formal analysis of Mauritius's growth performance shows, however, that even after accounting for the positive role played by institutions, there is a sizable unexplained component. It is plausible that some factors specific to Mauritius may also have played an important role. Foremost among these was the country's ethnic diversity and how it was managed.

First, some ethnic communities had important links with the rest of the world. The Chinese community, for example, attracted investment by Hong Kong entrepreneurs who sought overseas locations for their textile operations in an attempt to circumvent the textile quotas imposed on Hong Kong. Second, diversity, particularly the separation of economic and political power, helped ensure balance and prevented excessive taxation (by the politically powerful) of the sugar sector (owned by the economic elite), the country's cash cow. Third, diversity played an important role in the development of participatory institutions. Assuaging the misgivings of a large minority that had reservations about independence and were concerned about the possibility of domination by the majority made participatory politics in the post-independence era a necessity. These institutions ensured, in turn, the rule of law and respect for property rights that have made Mauritius attractive to investors. Perhaps, instilling confidence in the Mauritians in "their rights, their votes, the power of their opinions"—a major political achievement—was the key to Mauritius's economic success.

For further details, see Arvind Subramanian and Devesh Roy, 2001,"Who Can Explain the Mauritian Miracle: Meade, Romer, Sachs, or Rodrik?" IMF Working Paper 01/116 (Washington: International Monetary Fund), as well as their chapter in a forthcoming book,Analytical Development Narratives, ed. by Dani Rodrik, to be published by Princeton University Press. The challenges facing Mauritius in the period ahead are discussed in the IMF staff report for Mauritius's 2001 Article IV consultation(IMF Country Report No. 01/77).

05 February 2001

A New Regulatory Framework for the Financial Services Sector in Mauritius

Report of the Steering Committee on the Establishment of a New Regulatory Framework for the Financial Services Sector in Mauritius

Structure of Report and Recommendations

This Report is presented in seven sections.

•Section I summarises previous attempts made to establish a unified regulatory body.

•Section II provides a brief overview of international experience and trends regarding the structures set up for financial sector supervision.

•Section III focuses on the evolution of the financial sector of Mauritius against a backdrop of macroeconomic performance review. It highlights the evolution of employment in the sector, its contribution to GDP and its prospects. It also deals with the current organisational structure and staffing.

•Section IV considers the future shape to be given to the sector on the basis of a SWOT analysis.

•Section V goes to the core of the problem and takes up the arguments for a unified financial regulatory authority. These encompass the mechanism for good governance, accountability, the scope of regulatory powers and responsibilities as well as internal organisational structure of the authority.

•Section VI discusses the possible options to that end and makes proposals on how to propel Mauritius into a viable financial regional hub of international standard. This section includes proposals regarding the structure, staffing, human resources development and legislative framework

•Section VII proposes a phased implementation plan of the main recommendations made.

The main recommendations of the Committee are set out below.

(i) A unified financial regulatory authority, covering both banking and non-banking activities, be established in a phased manner, as follows:

Phase 1. The establishment immediately of a Financial Services Commission.
Phase 2. The eventual integration of the Financial Services Commission with the Bank of Mauritius.

(ii) The Financial Services Commission will be responsible for the licensing, regulation and supervision of all non-bank financial services. It will also be responsible for the protection of the rights of consumers of financial services.

(iii) The Financial Services Commission will take over the duties and functions of the Stock Exchange Commission, the Insurance Division and the Mauritius Offshore Business Activities Authority (MOBAA) as well as the regulation of all presently unregulated activities in the financial sector.

(iv) The Financial Services Commission will be managed by a Board which will be chaired by the Managing Director of the Bank of Mauritius. There will also be a Vice Chairperson and such other members as may be appointed by the Minister.

(v) The Financial Services Commission will facilitate the smooth integration of the onshore and offshore activities.

(vi) An appropriate legal framework is proposed for establishing the Financial Services Commission.

(vii) A Financial Services Advisory Council be established with the objective of giving overall direction and advice towards the development of the financial services sector. The Chairperson and Vice-Chairperson of the Advisory Council will be the Minister of Finance and the Minister responsible for Financial Services respectively. The other members will be the Governor of the Bank of Mauritius, the Chairperson and the Chief Executive of the Financial Services Commission, as well as practitioners from Mauritius and from overseas having an extensive exposure to financial sector development.

(viii) The establishment of a Financial Services Promotion Agency (FSPA) is being proposed as a separate entity. It will act as a one-stop-shop for the development and promotion of the financial services industry. The FSPA will work in close collaboration with the Board of Investment to devise strategies to attract investors to the financial sector of Mauritius. The FSPA will also be responsible for human resource development and keep abreast of technological advances in that sector.

The rationale of the abovementioned recommendations are given out in greater details in the text of the Report.

The Committee believes that the new regulatory structure which will emerge from the implementation of its recommendations will have the following benefits for Mauritius:

• It will go a long way towards making the financial services sector a well regulated sector.

• It will achieve the overall objective of sustaining economic development by the creation of high value-added jobs.

• It will set the right environment for the efficient integration of the financial and capital markets, the onshore and offshore sectors and generate the desirable synergies in the system.

20 April 2000

Asset Protection Trusts: Trust Law’s Race to the Bottom?

A number of offshore jurisdictions, joined recently by two American states, have enacted legislation permitting trust settlors to create trusts in which settlor may retain a beneficial interest while shielding that interest from the settlor's creditors. Because the costs of such legislation are felt largely outside the enacting jurisdiction while the benefits are concentrated within that jurisdiction, jurisdictional competition threatens to generate a "race to the bottom." After examining the conditions that have led to this race to the bottom, the article suggests that a variety of established doctrinal rules - ranging from choice-of-law principles to bankruptcy statutes - constrain the race to the bottom by restricting the advantages trust settlors may realize from creating asset protection trusts.

09 March 2000

Chinien v. Attorney General (Mauritius) [2000] UKPC 8 (9 March 2000)


Goinsamy Chinien Petitioner
v.
(1) The Attorney General and
(2) The Mauritius Bar Association Respondents

FROM
THE SUPREME COURT OF MAURITIUS
---------------
REASONS FOR DECISION OF THE LORDS OF THE
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL UPON
A PETITION FOR SPECIAL LEAVE TO APPEAL OF THE
16th February 2000, Delivered the 9th March 2000
------------------
Present at the hearing:-
Lord Hutton
Lord Hobhouse of Woodborough
Lord Millett
[Delivered by Lord Hutton]
------------------
1. This is a petition for special leave to appeal to the Judicial Committee by Mr. Goinsamy Chinien, a barrister, who is seeking to have his name reinstated on the Roll of practising barristers following its removal in 1993. The petition arises out of a judgment of the Supreme Court of Mauritius delivered on 10th June 1999 refusing to reinstate the petitioner’s name on the Roll and the subsequent ruling of the Supreme Court on 14th October 1999 refusing the petitioner leave to appeal to the Judicial Committee.

2. On the hearing of the petition on 17th February 2000 the Board dismissed the petition. It is not their Lordships’ practice to give reasons for either allowing or dismissing a petition for special leave to appeal but in view of the issues raised as to the right of a barrister in Mauritius to appeal to the Judicial Committee from the Supreme Court in respect of a disciplinary matter, their Lordships think it appropriate to give brief reasons for the decision.

3. The background to the petition was this. The petitioner was called to the Bar in Mauritius in 1976 and practised for about 10 years. In 1987 the petitioner was prosecuted on one count of conspiracy to export foreign currency and was convicted and sentenced to five years’ imprisonment. His conviction was affirmed by the Supreme Court and the petitioner then appealed against his conviction to the Judicial Committee: Chinien v. The State [1993] 1 W.L.R. 329. The Judicial Committee dismissed the appeal against conviction but quashed the sentence of five years’ imprisonment and remitted the case to the Supreme Court for sentence. The Judicial Committee quashed the sentence for two reasons. The first reason was stated as follows by Lord Jauncey of Tullichettle at pages 335-336:-
"In the first place it is axiomatic that a court can sentence only for the offence charged and not for what might have been charged. It would have been perfectly possible for the prosecution to have charged the appellants with the conspiracies to export currency and to import drugs. They chose, no doubt for very good reasons, not to do so. It would in these circumstances be wrong in principle for the appellants to be sentenced in respect of such conspiracies when they had only been charged with conspiring to export currency. It may be that it is proper to take into account the purpose of the illegal export but it can be proper only to the extent of warranting a sentence which would be in the higher rather than the lower range for illegal export of currency."

4. The second reason was that it was not right to pass a higher sentence for conspiracy than could be passed for the substantive offence. On the further hearing before the Supreme Court that court noted that the maximum fine which could be imposed on the petitioner was Rs.1000 and therefore gave the petitioner an unconditional discharge. The Chief Justice stated:-
"We think that, since a fine of Rs.1000 would serve no purpose, an unconditional discharge, a course which was suggested by all three counsel who addressed us, would be more appropriate and we order accordingly."

5. In 1987 about the time when the charge of conspiring illegally to export foreign currency was brought against him the petitioner voluntarily asked for his name to be removed from the Roll of practising barristers and this was done. The petitioner had, in fact, ceased to practise for a considerable time before he was indicted for the criminal offence.

6. In 1999 the petitioner brought an application before the Supreme Court seeking an order that his name be restored to the Roll to enable him to resume practice as a barrister. The Attorney General and the Mauritius Bar Association were respondents to this application. The grounds relied on by the petitioner were as follows:-
"(1) the Appellate Court in his (sic) majority judgment (Supreme Court Judgment No. 89 of 1993) sentenced the applicant to an unconditional discharge which does not count as a conviction or a sentence;

(2) the applicant voluntarily asked for his name to be removed from the Roll of practising barristers in 1987 and had in fact ceased to practise well before he was indicted for the criminal offence. Indeed he has now been in the wilderness for some 13 years;

(3) the applicant has had no other brush with the law since his conviction for the offence of conspiracy to export foreign currency, and

(4) he has purged his crime in the circumstances of the case."

7. Counsel for the Bar Association supported the petitioner’s application and stated that it was the unanimous view of the Bar Association that the applicant should be reinstated on the Roll. The Bar Association did not appear before the Board on the hearing of the petition but the Bar Association made helpful written submissions which their Lordships have taken into account. On the hearing before the Supreme Court it appears that the Attorney General did not oppose the application but it also appears that the Attorney General stated that if the Supreme Court considered that there was a drugs element in the criminal offence of which the petitioner had been convicted and that it was entitled to take that element into account, then he would oppose a reinstatement. On the hearing of the petition before the Board Miss Farmer appeared for the Attorney General.

8. It is clear that the primary reason for the Supreme Court’s refusal to reinstate the petitioner on the Roll was that the criminal offence of which he had been convicted related to drug trafficking. In delivering the judgment of the Supreme Court the Chief Justice stated:-
"To a question from this Court whether the Court would not be sending a wrong signal to the public in reinstating the applicant who was, after all, convicted for the offence of conspiracy to export foreign currency which has for object trafficking in drugs, as is underlined in the majority judgment of the Appellate Court, referred to earlier, learned Counsel for the applicant stated that his client was only charged with the offence of conspiracy to export foreign currency while learned Counsel for the second respondent was of opinion that we would not be doing so in the particular circumstances of the case.

Learned Counsel for the second respondent, however, speaking in his own name candidly stated that, although he had been persuaded by the arguments of learned Counsel for the applicant, nevertheless if the Court were to come to the conclusion that the main complaint against the applicant has a drug-dealing dimension which constitutes a predominant factor of concern, then the motion should be set aside."

9. In a subsequent passage of the judgment the Chief Justice stated:-
"Finally, with regard to the last factor mentioned by learned Counsel for the applicant, namely that the latter had purged his crime after some 13 years, we do not consider that we will sending the right signal to the community at large if we were to show mercy to someone, like the applicant, who was found to have in one way or another been engaged in a transaction connected with drugs, the more so as the drug problem is still prevalent in Mauritius and the war against drug dealers is still being waged without any quarter being shown to them."

10. On the petitioner’s application for leave to appeal to the Judicial Committee the Supreme Court refused leave on the ground that, in exercising its disciplinary powers in relation to a barrister, it was not taking a decision in "civil proceedings".

11. In his helpful submissions before the Board on behalf of the petitioner Sir Hamid Moollan Q.C. stated that the petition gave rise to two principal questions:

(1) Did the relevant provisions of the Constitution of Mauritius entitle the Supreme Court or the Judicial Committee to grant leave to appeal in the present case?

(2) If the answer to the first question was in the affirmative, should leave be granted in the present case?

12. Their Lordships propose to consider first the second question. The principal submission on behalf of the petitioner was that the Supreme Court was not entitled to take into account against him the fact that the currency offence was committed for the object of trafficking in drugs. Two reasons were advanced in support of this submission. The first was that there was no evidence that this was the object. However, their Lordships consider that the Supreme Court was entitled to have regard to this matter because in its judgment in 1993 it stated:-
"It is appropriate to recall that, in sentencing the three appellants to five years’ penal servitude, the Intermediate Court took into consideration the peculiarity that the conspiracy to export foreign currency had for object trafficking in drugs."

13. The second reason was that as the petitioner had been charged and convicted in relation to a currency offence and not a drugs offence, the Supreme Court was not entitled to have regard to the element of drugs in that criminal case. Their Lordships are unable to accept that submission. It is the law, as stated by the Judicial Committee in the earlier appeal, that a person cannot be sentenced for one offence for which he has been convicted, as if he had been convicted of another offence. But in the present case the Supreme Court was not sentencing the petitioner for the offence of illegally exporting currency: in considering whether the petitioner should be reinstated on the Roll it was having regard to the public interest and to the knowledge of the public that the petitioner’s offence had had a connection with drugs trafficking, and the effect which his reinstatement would have on the reputation of the legal profession in Mauritius in the eyes of the public. The Supreme Court was concerned, as it was entitled to be, with what signal would be sent to the public by the reinstatement of the petitioner at a time when the drugs problem was still prevalent in Mauritius and when the campaign against drugs dealers was still being vigorously waged.

14. Their Lordships recognise that there was force in the petitioner’s contention that the offence had been committed many years before and that, since that time, he had not been engaged in any illegal activity, and that accordingly it would be right to regard him as having purged his offence. Their Lordships also recognise that this is the view of the Bar Association. However the Supreme Court is much better placed than their Lordships to assess the conflicting considerations in a case such as the present one, and their Lordships are satisfied that it was open to the Supreme Court to take the view that the primary consideration was that in the public interest the reputation of the legal profession must be upheld in the community. Accordingly, if there were jurisdiction to grant leave, their Lordships would not think it right that leave should be granted in this case.

15. In the course of his submissions Sir Hamid stated that the issue whether there is jurisdiction for the Supreme Court to grant leave to appeal or for the Judicial Committee to grant special leave to appeal in a disciplinary matter is one which is a source of concern to the Bar. Therefore their Lordships propose to make some brief observations on the matter. Two questions arise. The first is whether there is jurisdiction for the Supreme Court to grant leave. Section 81(1) and (2) of the Constitution provides:-
"(1) An appeal shall lie from decisions of the Court of Appeal or the Supreme Court to the Judicial Committee as of right in the following cases –
(a) final decisions, in any civil or criminal proceedings, on questions as to the interpretation of this Constitution;

(b) where the matter in dispute on the appeal to the Judicial Committee is of the value of 10,000 rupees or upwards or where the appeal involves, directly or indirectly, a claim to or a question respecting property or a right of the value of 10,000 rupees or upwards, final decisions in any civil proceedings;

(c) final decisions in proceedings under section 17; and

(d) in such other cases as may be prescribed by Parliament.

Provided that no such appeal shall lie from decisions of the Supreme Court in any case in which an appeal lies as of right from the Supreme Court to the Court of Appeal.

(2) An appeal shall lie from decisions of the Court of Appeal or of the Supreme Court to the Judicial Committee with the leave of the Court in the following cases –
(a) where in the opinion of the Court the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to the Judicial Committee, final decisions in any civil proceedings; and

(b) in such other cases as may be prescribed by Parliament.

Provided that no such appeal shall lie from decisions of the Supreme Court in any case in which an appeal lies to the Court of Appeal, either as of right or by the leave of the Court of Appeal."

In Attorney-General of The Gambia v. N’Jie [1961] A.C. 617, 631 Lord Denning stated:-
"When the judges exercise this power to suspend or expel, they do not decide a suit between parties. There is no prosecutor as in a criminal case, nor any plaintiff as in a civil suit. The judges usually act on their own initiative, ex mero motu, on information which has come to their notice, or to the notice of one or other of them in the course of their duties; …

When a legal practitioner is suspended or struck off by the judges of a colony, he has always been at liberty to petition Her Majesty in Council to restore him. But he should give notice of his application to the judges so as to enable them to justify their order: see Smith v. Justices of Sierra Leone (1848) 7 Moo.P.C. 174, 175, by Lord Brougham; and in all the cases since 1848 the judges themselves have been made respondents to the appeal, see, for instance, Har Prasad Singh v. Judges of the High Court of Allahabad L.R. 58 I.A. 152: though in one of the cases the Attorney-General was also made a respondent: Macauley’s case [1928] A.C. 344.

This fact – that the judges are themselves always made respondents to the petition to Her Majesty – is an implicit recognition that, when exercising this jurisdiction, they do not sit as a court of law but as a disciplinary authority. And it has been expressly decided in West Africa that the judges in this regard do not sit as a court."

16. Therefore their Lordships are of opinion that the Supreme Court was right to hold that the application for reinstatement on the Roll was not in "civil proceedings" and that it had no jurisdiction to grant leave to appeal to the petitioner in this matter.

17. The second question is whether the Judicial Committee has jurisdiction to grant special leave to appeal in the matter under section 81(5) of the Constitution which provides:-
"(5) Nothing in this section shall affect any right of the Judicial Committee to grant special leave to appeal from the decision of any court in any civil or criminal matter."

18. Section 81(5) refers to "any civil … matter" whereas sections 81(1) and (2) refer to "any civil proceedings". Having regard to this difference in wording and to the former right of a legal practitioner suspended or struck off by the judges of a colony to petition Her Majesty in Council to restore him it can be argued that giving a purposive construction to section 81(5) there is jurisdiction for the Judicial Committee to grant special leave. Their Lordships do not propose to express a concluded opinion on this point as, if the jurisdiction does exist, it should only be exercised in special circumstances and they are satisfied that no such circumstances exist in the present case