Commissions of inquiry should operate within the precincts of the law and the rules of natural justice
Raouf Gulbul v Drug Commission of Inquiry
Qs & As
* ‘Judges do what they have to do in compliance with their oath of office and in full respect of the law of the land’
By LEX
In the widely-mediatised report on drugs, chaired by Justice Lam Shang Leen, some named protagonists, for instance Roubina Jadoo-Jaunboccus and Raouf Gulbul, have had recourse to a review and won their cases in the Supreme Court to set aside comments or findings prejudicial to them. This raises general questions about fairness and natural justice in the conduct, proceedings and reporting of Commissions, which are endowed by law with far-reaching powers and therefore liable to tarnish reputations were such rules of conduct not strictly adhered to. Lex shares his views below.
* In a judgement delivered on 9 November 2021, Judges Benjamin Marie Joseph and Jane Lau Yuk Poon have ordered that incriminating passages from the report of the commission of inquiry presided by Justice Lam Shang Leen be removed, as they are in the Judges’ opinion “incorrect, do not comply with the law of evidence and the rule of natural justice”. Was this to be expected?
Though a commission of inquiry is a fact-finding exercise with wide powers devolved on the commissioner or commissioners, the rules of evidence applicable to Mauritius must be complied with. In addition, the conduct of the inquiry must be fair in the sense that the party who is targeted must be given full latitude to rebut all allegations made against him/her before he/she is sanctioned by an adverse finding.
* This is a very serious matter since it involves two Supreme Court judges taking to task a former senior member of the judiciary — not a junior district magistrate lower down the rank — for not complying with the law of evidence and the rules of natural justice. Have the Supreme Court judges erred or are they correct in their reading of the commission of inquiry report?
Of course, the two Supreme Court Judges are right. Raouf Gulbul challenged the findings adverse to him by way of judicial review. In that perspective it was perfectly open to the Supreme Court Judges to determine whether the Lam Shang Leen report complied with the rules of natural justice. In other words, were all the rules of fairness like allowing Mr Gulbul to question his detractors; allowing him to see any alleged incriminating documents against him; and allowing him to make representations are complied with.
* There have been many previous commissions of inquiry reports that were successfully challenged in the past. What does this tell about how the judicial system operates in Mauritius?
When some findings of a Commission of Inquiry are quashed irrespective of who presided or who were members of that Commission, the judges have to see it whether the rule of law has been complied with. It is not a question of passing judgment on the judicial system. The Judges do what they have to do in compliance with their oath of office and in full respect of the law of the land.
* Are there any particular challenges that throw light on how commissions of inquiry operate and how bias may creep into their workings and conclusions, and also provide guidance on how these commissions should operate and the pitfalls to be avoided?
In the Gulbul judgment, the Judges have clearly stated the parameters within which a Commission of Inquiry should operate. This what they say: ‘At any rate, a Commission of Inquiry should not be a platform for the reception of evidence without proper observance and adherence to the law of evidence and the rules of natural justice.’
* On what grounds can the findings of a commission of inquiry be challenged?
Failure to comply with the rules of evidence; failure to give to the person being investigated all opportunities to rebut the allegations by cross-examining his accusers; failure to allow the person a chance to present counter evidence. In addition, there are also unwarranted comments that accompany findings that are not substantiated by the evidence.
Besides there may be people who are ill-intentioned and who may go to the extent of concocting evidence against a person under investigation especially if that person occupies an important position in society.
The Supreme Court highlighted this fact by writing that:
‘A person can otherwise have an interest of his own to serve by using the platform of a Commission of Inquiry to make gratuitous allegations with the sole purpose to destroy the reputation of another person. It is relevant to point out that a Commission of Inquiry should be careful as to not rely or publish evidence of any ill-intentioned person meant to either settle scores with a protagonist or destroy the reputation of another person.’
* How does the Supreme Court determine whether there was bias or not in the findings of a commission of inquiry?
The failure to hear one side would give the impression that a Commission is biased against the person under investigation.
In the Gulbul case the Judges point out that the respondents [that is the Commissioners]
“seem to adopt aone-sided view of the allegations put before them. In fact, it is appropriate to recall our observation made earlier that the respondents have said little about the response of the applicant to these allegations, so that on the face of the report one cannot ascertain that the respondents gave due consideration to the explanations and any evidence he put forward in rebuttal.
“Thus, it is difficult to say that before making the inferences of offences and wrongful acts from the allegations adverse to the applicant, the respondents dealt fairly with any relevant evidence emanating from the applicant conflicting with both the allegations and the inferences drawn from them. This constitutes a material flaw in the respondents’ approach to the evidence and in their analysis and appreciation of same.”
* If commissions of inquiry can play a useful role in investigating matters of public concern, there is always therefore the risk that they can also harm the reputation of a person and even destroy a politician’s career, isn’t it?
Precisely because the findings of a Commission of Inquiry may tarnish reputations that the members of such a commission or the person chairing it must be extremely careful before making any adverse finding or comment in the absence of solid and unshaken evidence.
As stated sometime back: “In the past, unfavourable comments or adverse observations have been made by a commission of inquiry. However, the Supreme Court has never quashed the comments or observations on the ground that they are not findings but mere observations. How would the lay public make a distinction between observations and findings?”
* There had been earlier the ruling of Chief Justice A. Caunhye and Judge N. Devat in the matter of the judicial review lodged by Mrs Roubina Jadoo Jaunbocus, which found that the Lam Shang Leen Commission “failed to act in conformity with the rules of natural justice and the requirements of fairness when dealing with the applicant in its Report” with regard to the allegation that Mrs Jadoo transmitted money from Mrs Maria Cupidon to Kamasho, and subsequently decided that the relevant paragraph of its finding be disregarded. What’s your take on that?
The tragedy of some commissions of inquiry is that they feel they have so much power that they can act and do whatever they want in breach of the rules of natural justice and in breach of the laws of the country.
In so doing they totally go off track and lose sight of the fact that they should operate within the precincts of the law and the rules of natural justice.
Chief Justice Ashraf Caunhye and Judge N. Devat were totally right in quashing the findings of the Commission on Mrs Roubina Jadoo as she had been denied the chance to rebut the allegations made against her.
* Published in print edition on 16 November 2021
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