Qs & As
* ‘How can the police start an investigation now before the time limit of three months for applying for judicial review would have elapsed?’
Barely had the Britam Commission Report been made public, that numerous quarters have raised questions regarding the potential bias of the Commission and the shortcomings of the contents. Some have dismissed it as a partisan tool targeting former Minister Bhadain, his advisors and the professional firm BDO. Those concerned parties have attacked the lengthy proceedings and Report as frivolous, announcing judicial reviews to the Supreme Court for redress. Lex delves into the legal issues and also the recommendations for better democratic governance, including sharp critiques of the AG’s office and the functioning of Parliament.
* On 8 April 2017, Government set up a Presidential Commission to inquire into the facts and circumstances in which Mauritius had sold the shares which BAI Company (Mauritius) Ltd and its related entities held in Britam Holdings Ltd (Kenya). Why did it take so long for the report to come out?
It’s quite possible that it had been a complicated inquiry. What is disturbing however is that one month before the report is released, evidence is still being fished out in light of a document produced and on which the commission acted without giving the persons concerned an opportunity to present their comments.
* Can the findings of the Commission be challenged in court?
Yes, the findings can be challenged by way of the procedure known as judicial review. This will enable the court to go through the findings and see whether they are justified on the basis of the evidence produced and if the evidence was legally admissible. It should be recalled that the existing rules of evidence of Mauritius apply to a commission of inquiry.
* On what grounds can the findings be challenged?
From public statements made by different parties and from a reading of the report itself, it does seem that there may be a number of grounds to challenge the findings.
A commission of inquiry should follow the rules of natural justice. This means that it must be fair, transparent, independent and impartial and only act on credible evidence. Has this been adhered to in the Britam inquiry? That remains to be seen.
* What are the specific grounds on which the findings may be challenged?
It appears that bias and unreasonable inferences or conclusions might have motivated the commission. The presence of one assessor is considered highly prejudicial in view of his proximity to the government, in particular the prime minister, and in light of his prior involvement with circumstances that ultimately led to the dismantling of the BAI group. Could that have clouded his impartiality?
* How will a court determine whether there was bias or not?
Any decider of facts has to be objective. Impartiality is both subjective and objective. Subjective impartiality is a judge’s personal impartiality as an individual. A judge is presumed to be subjectively impartial until proven otherwise. Objective impartiality is the parties’ and public’s belief that the Court as an institution or a commission of inquiry is impartial and that is important.
Now this consideration will be a crucial component of any challenge of the findings of the commission especially with regard to one particular assessor.
* It would appear that one of the parties in the matter, Mr Sandeep Khapre, was not called to submit his explanations on a document that was produced to the Commission…
This indeed appears to be the case. The supreme court has in previous judgments quashed findings arrived at on the basis of evidence in relation to some parties against whom there was evidence but who were not called to submit explanations. As regards Mr Khapre, it would appear that a document allegedly emanating from him was acted upon by the Commission without his given the opportunity to submit his comments on that document. It is a case of deciding behind a person’s back. This goes against all the basic principles of natural justice.
* The whole case in the Britam inquiry rested on whether there was a firm offer of about Rs 4.3 bn for the sale of the shares of BAI Ltd in Britam Holdings Ltd (Kenya). From what we hear in the press there no evidence that there was any firm offer for Rs 4.3 bn. How is that possible?
That’s the crux of the matter. Whether there was direct evidence or whether inferences could be drawn from the facts presented to the commission to substantiate that there was indeed an offer for Rs 4.3 bn will be for the court to determine.
* Apart from the findings on the Britam case itself, the commission has commented on many aspects of the public service?
Whatever one may feel about the findings against individuals or accounting firms, the commission has highlighted the nefarious role played by advisers to the government who appear to have taken over the administration of the public service from officials appointed by the Public Service Commission. This is what the commission writes: ‘Governments of the day shall ensure that political advisers are not appointed to influence decisions of State Regulators.’
The commission also urges public officers to act in the interest of the country. It also observes that the government must ensure that that ‘public officers and professionals forming part of those institutions are able to progress the entities with an independence of mind and action, if in the interest of the nation, fulfilling their statutory roles pro-actively on government policy but not unethically.’
* The commission has also commented on the role that the Attorney General should play as principal legal adviser to government. Any comment?
In fact, there is far too often the perception that the advice tendered by the Attorney General is tailored to suit the convenience and decisions of the government. That might have prompted the commission to bitterly indict that office by writing:
‘We recommend that the office of the Attorney-General being a Constitutional Office of the highest order under section 69 of the Constitution, take measures to dispel any perception that it is advised by Government rather than advising Government. It shall develop and adhere to a protocol of the manner in which Elected Executives relate to the Office. While it should lend a ready ear to the myriad of concerns generated from a myriad of quarters, it should avoid becoming vulnerable to any extraneous pressure; exercise institutional scepticism on advice emanating from sources other than the established trusted sources; do whatever it takes to watch the interest of the State but without compromising on its image of being apolitical and independent.’
* It is interesting to note that the commission also calls on the government not to ignore the views of the opposition when it comes to legislating. This is what the commission says: ‘Opposition views, sometimes very pertinent, should be heeded and not scoffed at. In the absence of an Upper House to comment objectively on a Bill, it is essential that the Minister tabling the Bill should lend an ear to what the opposing views are. It is the ethical duty of members knowledgeable in law to lift the debate to a level above the mere political, populist and partisan.’ Was that justified?
Of course. Look at what is happening to legislation on the future of horse racing or the future of pensions. The views of the opposition are ridiculed and scoffed at. It is as if whatever the opposition says is mere nonsense. The opposition is either threatened or muzzled with the assistance of what is perceived to be a partisan speaker. Is that democracy?
* Will the government of the day pay heed to the comments made on the public service and the manner of legislating?
No way. The government and its followers are all focusing on the guilt of the protagonists in total defiance of the rule of presumption of innocence. Everybody on the government side is making abstraction of the latter part of the report that incorporates the principles of good governance. The comments made by the commission are a real indictment of the government of the day and no wonder the government and its followers are turning a blind eye on that aspect of the report.
* One of the protagonists who was targeted in the report has been highly critical of its findings. Why is that so?
The main protagonist is Mr Roshi Bhadain. A well-known firm, KPMG, is also targeted as well as the firm BDO. The latter two have not made public statements except for BDO, which has issued a communiqué. Mr Bhadain is a politician and it is normal that he will want to defend his reputation. No doubt he will challenge the findings before the court and it will be up to him to substantiate his stand.
What is strange is that the police will apparently start an investigation with a view to finding out whether the protagonists are criminally liable. How can the police start an investigation now before the time limit of three months for applying for judicial review would have elapsed? This is sheer nonsense and it smacks of political harassment.
* Published in print edition on 3 August 2021
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