As the country heads into unchartered waters with a commission of inquiry looking into possible constitutional violations by a former president, Weekly talks to Antoine Domingue, former head of the Mauritius Bar Council, about what the commission can and cannot do. Also, he gives his opinion on the drugs commission and what kind of challenge those named and shamed by the commission can mount to try to pull their chestnuts out of the fire.

This week, the hearings of the Commission of Inquiry into Ameenah Gurib-Fakim are starting. What is the point of setting up such a commission?

The whole point is to investigate the chain of events and determine whether any provision of the constitution has been breached, and if so, to make appropriate recommendations for the future as to whether the legislation ought to be amended or not. I suppose this is the main thrust of the exercise.

Are there any implications for Gurib-Fakim?

I don’t think there are any implications so far as her pecuniary interests are concerned. These are protected by the constitution and by law.

So even if the commission finds that there was a violation of the constitution, the former president would continue to enjoy her pension and all her privileges as she is doing so now?

Yes she will in my opinion. The commission is prospective in nature. Any changes it may recommend need to be made into law for the future.

So the former president has nothing to fear?

Yes, her acquired rights are preserved by the constitution. She cannot be deprived of property rights; that would be a breach of sections 3 and 8 of the constitution. But it is possible for the legislator to prospectively amend the law. I don’t think this is the aim of the exercise.

Do you think the aim is to try to incriminate not only Gurib-Fakim but also those who supposedly were advising her?

That is not my reading of the terms of reference. Had that been the purpose, the matter would have been sent to the Central Criminal Investigation Department (CCID). I think the purpose is to prevent such an event from reoccurring in the future.

Does Gurib-Fakim have the right to say nothing because of immunity?

That could be her stance. Also, don’t forget that a commission of inquiry is subordinated to the Supreme Court and therefore can be reviewed by the Supreme Court. So the whole exercise is justiciable.

No, I won’t forget. That reminds me that you are Sanjeev Teeluckdharry’s lawyer in the judicial review he has applied for regarding the Commission of Inquiry on Drugs. What does that exactly mean when there was no verdict or juridical consequences but just findings and recommendations?

The person has the right to ask for a review and the court can take a decision that certain parts of the report can be discarded.

Presumably the parts referring to them…

Yes, you cannot go outside those parameters as you do not have the locus standi to challenge anything which is beyond a reproach of you in the report.

In a press conference, Roubina Jadoo-Jaunbocus alluded to the fact that other people – like Kailash Trilochun – also paid unsolicited visits but the commission recommended no further inquiry in his case…

That’s the case, yes.

What kind of defence is that? “I am guilty but there is somebody else who should also be pronounced guilty.” Does someone else’s guilt make you innocent?

In my view, when you are entrusted with sitting on a commission, you have to act impartially. You can’t act with an uneven hand. Therefore someone might legitimately have grounds for concern that he/she has not been dealt with fairly.

If what you are saying is that the other person is also guilty, that does not mean that you are innocent and should not be investigated further.

We are not saying that other person is also guilty; just that people in similar circumstances are not being treated the same. We are not saying anybody is guilty or not because there is no charge, you see. This is why the commission of inquiry each time says that there should be further inquiry.

If I were investigated by a commission and I am found to have done something that is at least unethical, probably also illegal, that’s the thing I would challenge, not what somebody else has done.

Those are not the only grounds for challenge; there are others that have not been fully looked into. The customary grounds are that there is not sufficient evidence or that the commission has gone beyond its terms of reference, or that the charges are not supported by the evidence on the ground. There are a number of grounds to challenge. There can be grounds for procedural impropriety.

Technical grounds, you mean?

The whole point is that the person I am representing can say that he is doing his job. Has the commission called upon the clients and asked whether the visits were unsolicited? That could be an issue. I have just been approached; I have to go through the proceedings and this could be a challenge. The same thing arose in the case where there was a select committee report where they annexed a list of people making visits and I found myself at the top of the list because I had visited a number of clients, my clients, and they said these were the people I had visited. So when I went to depone, I drew the attention of this present commission of inquiry to the fact that we must be very careful where we draw the line. If counsel is doing his duty, then this is a matter that is not within their terms of reference.

This is a tactic to sow confusion, perhaps deliberately. When the commission looked into your visits, the questions stopped there. We are talking about those who could not justify their visits because they were unsolicited and many of the detainees were not their clients.

I told Judge Paul Lam Shang Leen to be careful and to make a clear difference between those doing their duty as counsel and those who made unsolicited visits. The commission did draw that line, but my client is arguing that in his case the visits were not improper.

The commission wouldn’t have pinned him down if the visits were proper. But what about telephone calls? Are you allowed to make phone calls to prisoners?

How are you to know who is calling you and from where?

And when the person you are trying to defend is making the calls?

This is one of the things that the Supreme Court must look into, because sometimes they just receive the call innocently and do not know whether the person is illegally having the conversation.

Does it take eight or 12 minutes to find out whether the person is calling by mistake?

The Commission of Inquiry has raised the facts and that has now come to the forefront. That was not brought up at the time. You also have to find out what the purpose of the conversation was.

What could be the purpose of someone who has called you or that you called illegally and talked to on a phone when you know you are not legally allowed to in the first place?

What I am saying is that you must know the reason for the call; if somebody is calling you to say that he has been released, or that he has been authorised to make the call, how are you to know?

From a cell phone?

When you pick up the phone, is it necessary to look at the number? That’s the whole point. These are issues that will have to be addressed by the court. The person will argue that he was doing his duty, and that he was not the only one and that he should not be taken to task.

The drug traffickers are also saying that they have not done anything wrong. Does that make them innocent?

You cannot prevent someone from saying that he was doing his duty; he has the right to apply to the Supreme Court. That does not prevent the authorities from investigating the case. The commission has made recommendations, the police will investigate and nothing prevents the police from acting and finding offences that have been committed. That should be made clear also. You cannot use evidence at the commission to prosecute someone; you have to restart the inquiry by the law enforcement authorities.

What do you make of the recommendation of the commission to get rid of the Anti Drug and Smuggling Unit (ADSU) and set up another commission to be run from the Prime Minister’s Office (PMO)?

The main thing from what I can see is that they want to recast the investigating machinery. There is nothing wrong with that. But this is having a bad effect on morale within the ADSU. That does not mean that the recommendation is wrong.  

Don’t you think bringing something under the PMO would result in more political interference?

It should be independent and totally insulated from political interference.

Isn’t that easier said than done?

The best course is to set up a select committee to decide the way to go. You cannot have an investigation by someone who depends on the PMO. That is not in accord with the safeguards in the constitution. You might have an independent commission, but not under the thumb of the prime minister.

What is the best recommendation for you in this report?

The best recommendation is to have a special court which is going to deal with drugs, like the industrial court which deals with specific matters.

What’s the recommendation you like the least?

You have to take a holistic approach to the whole matter and see whether the recommendations are going to achieve the required objectives. Yes it would make sense to scrap the ADSU, for example, and replace it with a commission, but that commission should not be under the thumb of the prime minister. All the recommendations of the commission have to be looked into in detail to pick out what will really lead the country forward. 

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