Qs & As
Prerogative of Mercy
* ‘The question as to whether Mr Dip stood convicted is the crux of all the controversy around the decision of the Commission’
The recent decision of the President of the Republic, acting on advice tendered to him by the Commission on the Prerogative of Mercy regarding the case of the son of the CP, has created quite a stir in the end of year period. Lex does not believe that either have acted in an ultra vires fashion as this is a constitutional provision, even if it can be debated whether the remission of the Supreme Court’s condemnation while the matter was still being appealed to the Privy Council was appropriate. As any public body, says Lex, the Commission should be expected to act fairly and independently after due cognizance and evaluation of the file, but its recommendations can also be brought up for judicial review by any party with a locus standi to do so.
* The provision for the ‘Prerogative of Mercy’ as defined in section 75 of our Constitution most probably draws its inspiration from the ‘Royal prerogative of mercy’ by which British monarchs could (since at least the 1700s) change any sentence or penalty, for instance to pardon pirates who surrendered to the authorities, to provide an early release to prison inmates as a reward for saving the life of the manager of the prison farm when he was attacked and gored by a captive wild boar, etc. Do you think it’s about time we bury this colonial legacy, or are there good reasons for its maintenance here?
In the British tradition, the royal prerogative of mercy is one of the historic royal prerogatives of the British monarch, by which the latter grants pardons, known as a royal pardon, to convicted persons. It was originally used to permit the monarch to withdraw or provide alternatives to death sentences.
In Britain there is now the Criminal Cases Review Commission (CCRC) which is an independent public body that reviews possible miscarriages of justice in the criminal courts of England, Wales and Northern Ireland and refers cases to the appeal courts.
There are good reasons for its maintenance as it mitigates the rigours of a punishment and correct any miscarriage of justice.
* The argument has been made that the Prerogative of Mercy defeats our usually justice system when the law provides for the President of the Republic, acting on the advice of the Commission on the Prerogative of Mercy, to radically change any sentence – even if the highest courts have ruled a verdict of guilty. What’s your take on that?
Though a person has been found guilty by a court of law, it is possible that a miscarriage of justice may have occurred. For example, in Britain, the Criminal Cases Review Commission has powers to refer cases to the appropriate court for an appeal to be heard. That body does not take into account the innocence or guilt verdict, but whether there is new evidence or argument that may cast doubt on the safety of a decision.
The decision of the Commission of Prerogative Mercy in Mauritius should not and is not a breach of the separation of powers that amounts to an interference in the judicial process as some are claiming.
Even in Mauritius under the provisions of the Protection of Human Rights Act and the Criminal Appeal Act a convicted person may apply to the Human Rights Division, in such form as may be prescribed, for an enquiry to be conducted as to whether there exists sufficient fresh and compelling evidence that may satisfy the Human Rights Division that a reference should be made to the court: “Where the Court is satisfied that – there is fresh evidence and compelling evidence in relation to the offence or a lesser offence; and (b) it is likely that the retrial will be fair, having regard to the circumstances, including the length of time since the offence is alleged to have been committed (…)”.
* Not much is known about the workings and decisions of the Commission on the Prerogative of Mercy. What considerations do you expect would inform the Commission in its determination of an application for mercy?
As any institution the Commission is expected to carry out its functions with rigour, integrity, and honesty. When the Commission gets a request for consideration, it will fully investigate the matter and call for the court files, if need be.
The late Sir Victor Glover who presided the Commission explained that the character, the background and the family connections of the individual are taken into account. It is not only the facts of the criminal case, there are also humanitarian factors.
* Are the recommendations of the Commission confidential or should they be made transparent and public?
The Commission is not a court of law. Its deliberations should remain confidential. However, there is no harm in publishing the list of those whose requests have been favourably considered. After all, if somebody has had his sentence of imprisonment substituted with a fine, that person will go back to society. The public has the right to know about that convicted person who has been released as it were by the Commission.
* Upon receipt of an application, does the Commission have to seek a report on the applicant from the police and the Office of the DPP?
The Commission has the power and duty to get all information that would be relevant to its deliberations in reaching a decision. As a rule, the Commission will obtain materials from the courts. It may even ask the police to investigate or ask the views of the DPP. It has wide powers to do so.
* Are the recommendations of the Commission amenable to judicial review by anybody with locus standi, especially one whose application has not been favourably considered?
The Commission is a public body. It does not have the immunity that the Constitution confers on the President of the Republic. Though the final decision 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.
As regards judicial review, the main issue would be to determine who has locus standi to apply for it. In Mauritius, unlike in India, we do not have the Public Interest Litigation regime that allows any citizen to petition the Indian Supreme Court on a matter of public interest.
* Are there (or should there be) a set of guidelines to avoid any embarrassment to the Commission itself and to the President of the Republic?
One cannot give guidelines to a body that is chaired by a former Chief Justice. If guidelines are required for the Commission on the Prerogative of Mercy, then tomorrow the public would be asking for guidelines to be issued to the courts of law. There is no need for any guidelines. The Commission has up to now performed its functions properly. The particular case of one citizen, whose father happens to be the Commissioner of Police, should not justify that we throw out reason and cast opprobrium on the Commission.
* Public attention is usually focused on the President of the Republic – whoever is in office – whenever a convicted person is granted a remission of sentence. It would seem that the real power to grant or not remissions lie with the Commission on the Prerogative of Mercy, and the President is bound to act on the advice of the Commission. Is that correct?
The groundwork is done by the Commission. The President acts on the recommendation of the Commission. The President however has the power to ask the Commission to review any of its advice, and he shall act in accordance with such advice as may be tendered by the Commission after such reconsideration.
From information available, it appears that when the President asks the Commission to review a recommendation, the Commission would almost not send it back to the President. The reconsideration of the recommendation may be interpreted as a refusal of the President to endorse the initial recommendation.
* Section 75 (3) (b) of the Constitution, which spells out the circumstances in which a member of the Commission shall vacate his seat on the Commission, states as follows: “where his appointment is revoked by the President, acting in his own deliberate judgment”. Could this be construed as a persuasive instrument in the hands of the President to ensure that the Commission’s members do his bidding?
The general rule is that the power to appoint also contains the power to revoke. A President may have his own reasons to revoke a member. There may be many factors that may lead to a revocation like dishonesty, incompetence, or breach of confidentiality. But normally if the President is not happy with a member of the Commission, he would politely ask him to step down.
* The remission granted to the son of Police Commissioner Dip has raised lots of questions and protests from different quarters. Acting Chief Justice David Chan had on Monday 21 Nov 2022 ordered that “the execution of the judgment and sentence (,,,) of the Intermediate Court (Criminal Division) delivered on 19 February 2018 and 26 Feb 2018 respectively be stayed pending the determination of the application for special leave to appeal before the Judicial Committee of the Privy Council”. What is the implication of such an order?
An issue has been made about the fact that the applicant in this particular case is the son of the Commissioner of Police. Why can’t it be viewed as the case of a citizen availing himself of his right under the constitution to apply to the Commission?
As somebody stated on Top FM on Monday, the fact the Mr Dip is the son of the police commissioner has nothing to do with the decision of the Commission. There is a mentality prevailing in Mauritius whereby anybody connected to a person occupying a high position or related to a politician of the government, or bearing a particular name, is not entitled to any advantage which any other citizen is entitled to. When this happens, it is immediately viewed as a favour. This may not be necessarily be the case.
* The suspension of the Intermediate Court judgement, as ordered by Justice David Chan, until the determination of the appeal by the Privy Council would also, by implication, mean that Chandra Prakash Dip has not yet been convicted of any offence. Was it in order for the Commission to entertain any application for remission of a judgement and sentence that stands suspended in those circumstances?
The question as to whether Mr Dip stood convicted is the crux of all the controversy around the decision of the Commission to substitute his prison sentence with a fine. Logically, if a judgment convicting a person and the sentence are suspended, it would mean there is no conviction.
Views however differ. Some believe that following a conviction and even if there is an appeal pending and the judgment is suspended, the Commission can still consider an application for mercy. Others are 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 the Commission is completely silent on this aspect of the matter.
Mauritius Times ePaper Friday 13 January 2023
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