The Office of the Director of Public Prosecutions has lodged an application for judicial review of the decision of the Commission on the Prerogative of Mercy to entertain the application of Chandra Prakash Dip, son of the Commissioner of Police, for remission of the 12-month prison sentence delivered against him by the Intermediate Court into a Rs100,000 fine. The remission recommendation in this particular case expeditiously approved by the President of the Republic had raised lots of questions and protests from different quarters. One must recall here that anybody with a locus standi can call into question the fairness of a decision-making process and in the case of this mercy decision, only the office of the DPP would hold such a mandate and only the “Mercy Commission” could be subject to a judicial review by virtue of the President’s immunity.
One of the arguments put forward is that the decisions of the Commission on the Prerogative of Mercy may defeat our justice system when the law provides for the President of the Republic, acting on the advice of the Commission, to radically change any sentence – even if the highest courts have ruled a guilty verdict. Tied to that are a number of questions, namely whether the suspension of the Intermediate Court judgement, as ordered by Justice David Chan on Monday 21 Nov 2022 until the determination of the appeal (lodged by Chandra Prakash Dip) to the Privy Council would, by implication, mean that Chandra Prakash Dip has not yet been convicted of any offence; and whether it was in order for the Mercy Commission to entertain any application for remission of a judgement and sentence that stands suspended in those circumstances. Given the stand taken by the DPP, it will be up to the Supreme Court to first decide whether the recommendations of the Mercy Commission are amenable to judicial review and only then how they might hear pleas and rule on a decision where the President of the Mercy Commission has himself been a retired past Chief Justice.
Our correspondent Lex had in an earlier interview argued the point that ‘logically, if a judgment convicting a person and the sentence are suspended, it would mean there is no conviction.’ Opinions differ on these questions, he added, as some would tend to support the view that following a conviction and even if there is an appeal pending and the judgment is suspended, the Mercy Commission can still consider an application for mercy; others may be of the firm view that in the absence of a conviction, the Commission has no power to intervene. ‘Only a court of law can shed light on this.’
As regards whether the recommendations of the Mercy Commission can be brought up for judicial review, the DPP clearly seems to believe that that is indeed the case given that the Commission does not enjoy the immunity that the Constitution confers on the President of the Republic. Though the final decision (in an application for remission) is that of the President in the sense that the latter endorses the recommendation of the Commission, the main decision-making process is that of the Commission and should be amenable to judicial review, argued Lex.
Meantime it has been also reported that Chandra P. Dip is being hauled to the Financial Crimes Division of the Supreme Court by the ICAC (after a DPP greenlight, it seems) for alleged wrongdoings in a Rs 80m financial scam dating back a few years. The continuing hassles that Chandra P. Dip is having to face to clear his name is not a matter for rejoicing for any of us. More importantly is the fact that the present DPP Rashid Amine, following in the footsteps of Satyajit Boolell, is giving the right signals as regards his intention to preserve both the independence and strength of his Office, including the maintenance of absolute prosecutorial discretion without direct or indirect pressure, arm-twisting or interference by other arms of the government. This is a welcome development in these rather troubled times, and like his predecessor it will go to the DPP’s credit as well if he were to maintain the practice of providing explanations regarding his decisions to prosecute or not to prosecute especially in cases involving the high and the mighty.
It is critical that we preserve both the independence and strength of our public institutions. The administration of justice in particular should be seen to be as neat and irreproachable as Caesar’s wife – above suspicion.
Mauritius Times ePaper Friday 3 February 2023
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