The Caunhye Commission: Let clarity prevail

When the commission of inquiry has completed its work, the public must not be left feeling that it has gained no further clarity and it cannot have confidence in the presidency

The commission of inquiry set up to investigate into the circumstances related to the “purported commission of inquiry” by Mrs Ameenah Gurib-Fakim in March this year has already come in for criticisms from some members of the bar on the ground that the said commission would go against the doctrine of the separation of powers as set out in our Constitution.

This matter calls for some comments.

First, it would have been more credible for the Government to go for a full-fledged commission of inquiry to probe into the Alvaro Sobrinho affair itself along the lines and as encompassing in its scope as set out in the terms of reference announced by the Ameenah Gurib-Fakim-inspired commission of inquiry. That the FSC expedited matters to revoke the licence of one of Mr Sobrinho’s investment companies, in the wake of the tussle – which lasted almost two weeks – the Prime Minister had to go through with the former President, is indicative of the questionable manner in which Mr Sobrinho would have seen his investments facilitated in Mauritius. This would suggest that the real questions that should form part of a comprehensive due diligence exercise might not have been put prior to the issue of the relevant licence but only after the patrons of Mr Sobrinho, if any, had lost favour with whomsoever could pull the strings of political power.

Second, there is the impression that, notwithstanding his sources of funds, Mr Sobrinho’s worries started when he casually and perhaps innocently announced his interest to invest in the energy sector in Mauritius. One can reasonably suspect that barriers to his entry in this highly profitable and guaranteed market (acquired thanks to cast-iron contracts) had to be erected. But that is another story which unfortunately is conveniently swept under the carpet by the interested parties and the media but which should interest observers and students of how the Mauritius business market operates.

It could also be surmised that a full-fledged inquiry into the Sobrinho affair could have ruffled some feathers within what remains of the governing alliance – and even going to the extent of exposing some decision makers in an unfavourable light. The Government has therefore chosen to rope in the ICAC – another investigative body, much like the police, but without the power of arrest – which opposition politicians do not hold in high esteem on the ground that it might be liable to government interference. This is not to question the integrity and independence of the Commission nor of the men who man it. It’s up to the ICAC to prove its critics wrong by acting in a manner that befits its “independent” calling and be seen to act independently of the Government.

As regards the criticisms levelled against the Caunhye Commission, we should expect that this Commission will be challenged and its legitimacy questioned on the grounds that it’s only the Supreme Court which can called upon to pronounce on the constitutionality or otherwise of an act initiated by whomsoever, be s/he President of the Republic or not, and that it would be improper for a commission of inquiry to propose constitutional amendments which is the prerogative of the legislature.

Views have also been expressed in legal circles as to how this Commission would affect the administration of justice since it is considered not appropriate to have three sitting judges, a situation which may affect their judicial work and disrupt court work whilst there are already complaints about delays in the dispensation of justice in our system. That is besides the possibility that any challenge to the Commission, which would put into question its legitimacy, might backfire as well as adversely affect the reputation of the judges.

Another criticism expressed is that judges who serve in what might be perceived as politically motivated inquiries run the risk of being dragged into politics and having their reputation for impartiality soiled. It is doubtful if our judges will go along with politicians down that path, and as has rightly pointed out Senior Counsel Antoine Domingue to the press, this is not the first time that sitting judges have presided over commissions of inquiry into sensitive matters, like the one relating to allegations of impropriety made against former Commissioner of Police Raj Dayal, or the one into the 1999 riots.

There is also the question of the Commission inquiring into the involvement of any law practitioner in the “drafting, advising, or participation” in the Gurib-Fakim’s commission. There would amount to, according to criticisms expressed by some members of the bar, an attack on the “sacrosanct principle of legal privilege”. ‘In common law jurisdictions, legal professional privilege protects all communications between a professional legal adviser (a solicitor, barrister or attorney) and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer.’

This sacrosanct principle, like all such principles, must be respected.

However, given the seriousness of the matter under investigation, one must trust that all parties concerned will cooperate with the judges so that light is thrown on the issues raised in the terms of reference of the Caunhye commission of inquiry. The more so as there are implications and impacts which concern the country as a whole and are not limited solely to the sphere or interest of one individual. As this individual happens to be a former president, it is the presidency itself as an institution which comes under scrutiny. Therefore, when the commission of inquiry has completed its work and the chapter is to be closed, the public must not be left feeling that it has gained no further clarity and it cannot have confidence in the presidency. That would indeed be a very unfortunate indictment.

* Published in print edition on 25 May 2018