Fresh off his victory at the Privy Council, Betamax boss is now asking the Supreme Court for an injunction to the setting up of a commission of inquiry into the Betamax deal. Given the odd way in which this commission has been set up and the odd position it puts the Mauritian judiciary in, to what extent can the president’s decision to institute this commission be challenged?

1 - Challenging the commission

The chief executive officer (CEO) of Betamax, Veekram Bhunjun, is challenging the government’s decision to set up a commission of inquiry looking into the way the Betamax deal was crafted in 2009 and terminated in 2015. What he is asking from the Supreme Court is a judicial review to quash President Pradeep Roopun’s decision to instate this commission under sitting judge Carol Green-Jokhoo. On June 25, this year, the government decided to set up this commission following its legal defeat in the Betamax case and having to pay out over Rs5 billion in damages to Betamax for unilaterally terminating in 2015 the contract signed by previous Labour-led government in 2009 to transport Mauritius’ fuel supplies from India. 

In 2017, the Singapore International Arbitration Centre (SIAC) awarded Betamax damages, an award subsequently overturned by the Supreme Court on May 31, 2019, that termed the 2009 Betamax deal to be “illegal”, and hence the SIAC award to be unenforceable. On June 14, this year, however, the Privy Council overruled the Supreme Court arguing that it could not interfere with the decision of the SIAC arbitration, and that the Betamax deal was indeed legal. The denouement appeared to have been reached. But that, until the commission of inquiry appeared.

2 - Putting the cart before the horse

The crux of Bhunjun’s case for a judicial review is how the entire point of the commission seems to be about looking into issues that have already been heard and ruled by both the SIAC and the Privy Council. By the government trying to reopen a matter that has already been decided by the courts, Bhunjun’s affidavit argues, the proposed commission “is clearly a direct attack by the executive on the independence of the judiciary”. Usually, commissions are supposed to look for information, which is then supposed to lead to an investigation and possibly a court case. What is odd about this commission is that an investigation has already taken place: the police investigated former prime minister Navin Ramgoolam, former public infrastructure minister Anil Bachoo, three civil servants and indeed, Veekram Bhunjun himself concerning the Betamax deal, only for the Director of Public Prosecutions to drop all charges against them. 

Former police commissioner Mario Nobin tried to challenge that decision in the Supreme Court but failed on April 25, 2018. Both the setting up and termination of the deal have been heard and sorted out by the courts. In its judgement on June 14, the Privy Council said: “The Supreme Court was not entitled to review the finding in the Award on illegality and the COA (contract of affreightment signed with Betamax -ed.) was not in any event illegal.” 

According to constitutional lawyer Milan Meetarbhan, “in both arguments, the SIAC and the Privy Council have already said the contract was lawful and criticised the way it was rescinded, so there is the answer”. Former Supreme Court judge Vinod Boolell states in a similar vein, “I think this is the first time that it appears as if they are putting the cart before the horse. These matters have already been determined by a court; so, what is it that will be achieved by this commission?”. 

Further than that, the Betamax Commission, even before starting its work, seems to have landed itself in a tight spot, and the Mauritian judiciary in an uncomfortable position. The first issue is that a commission headed by a sitting Supreme Court judge will have to walk a tightrope to avoid falling foul of the Privy Council’s decision, or the SIAC’s decision. “The commission will have to tread very carefully on this,” insists Boolell. So how much room does this commission have in reaching a radically different conclusion over the Betamax deal than the Privy Council, a higher court whose decisions are binding on the Supreme Court itself? “That will be quite awkward and most unlikely,” concludes Boolell. 

Comtempt of court 

This is the problem that Bhunjun’s affidavit points to when it mentions the commission being “in contempt of court”. The clash between the commission’s mandate and previous judicial decisions on the same case and the same facts risks, according to lawyer Sanjay Bhuckory, “looking like the executive wanting to set up a parallel system”. The other problem, even if the commission were to treat the setting up the Betamax deal and its termination separately, “the start cannot be separated from the end, they are interrelated and part and parcel of the same process,” explains Bhuckory. Should the commission say that the way the Betamax deal was set up was irregular or illegal, it goes against the Privy Council’s decision that ruled the Betamax deal lawful. If it says that the way the deal was terminated was okay, then again it goes against both the SIAC and the Privy Council. It simply cannot stray too far from what has already been ruled without opening the door to a clash with the highest court. 

If the commission has limited room to come to a different conclusion on the crafting or termination of the deal, is it just a way to simply allow government to situate blame and scapegoat others, looking to score a political point out of a legal defeat? “It’s obvious that this is just a diversion,” says Meetarbhan, “people are angry over the state having to pay nearly Rs6 billion in damages to Betamax so this commission looks like it’s about diverting attention; if that’s the case, then it is more about political manoeuvring and puts a sitting judge in an embarrassing position”. 

Indeed, Bhuckory argues that unlike court cases, the workings of commissions are more susceptible to public criticism, “people are free to comment freely on a commission’s workings and it’s hard to see why a sitting judge would expose himself or herself to such criticism,” he adds. Lest we forget the types of criticism that Dawood Rawat rained on the Britam Commission for not allowing him to testify, still less the barrage of criticism that its report has attracted since it was published. But unlike Bhushan Domah, who is retired from the judiciary, this commission is being led by someone who is still there.

3 - Can a president’s decision be challenged in court?

TWO legal questions flow out of Bhunjun’s legal challenge of the Betamax commission. The first is that, unlike previous commissions of inquiry, it does not come afterwards to challenge its findings, but rather challenges the setting up of the commission before it begins. Now commissions in the process of being set up have been challenged in the past, such as those looking into the Mauritius Ports Authority buying cranes and the Mare Chicose landfill. “But these were challenged on the grounds that their terms of reference were too narrow,” explains Bhuckory, “this is the first time that the setting up of a commission of inquiry itself is being contested”. There was, however, the case of former police commissioner Raj Dayal who objected to a commission as part of a long process that eventually led to his being fired. Although it failed, it was the only example of a previous attempt to try to prevent a commission from being instated.

The second interesting point of Bhunjun’s affidavit is that it is aimed at President Pradeep Roopun, who has formally set up the commission. “The matter is before the court right now, but one of the arguments that Bhunjun’s lawyers will have to face is the argument that the President is immune from any court process,” argues Bhuckory. Section 30 of the Constitution has traditionally been regarded as the final word when it says, “no civil or criminal proceedings shall lie against the President or the Vice-President in respect of the performance by him of the functions of his office or in respect of any act done or purported to be done by him in the performance of those functions”. In 2001, for example, Sir Anerood Jugnauth criticised Navin Ramgoolam at a press conference and Ramgoolam sued for defamation.

The problem was that by the time the case came to court, Jugnauth had become president. According to Bhuckory, “we tried to argue to keep the case in abeyance until SAJ was no longer president”. It didn’t work and the courts dropped Sir Anerood Jugnauth out of the case since he was now the president. On the face of it, by targeting the president, Bhujun’s own case seems a non-starter in the face of the presidential immunity granted by the constitution. 

But, argues Meetarbhan, there is an inherent risk in such a generous legal treatment of the president. “The courts really have to decide on this issue, blanket immunity for the president can lead to a strange situation where if it is assumed that there are no circumstances where a President’s decision can be legally challenged, all a government would have to do is add the president’s name to a decision to shield it from any legal challenge just by a stroke of a pen.”

If it is to succeed, Bhunjun’s case will have to squeeze through a nuance differentiating between decisions taken by a president on his own and where he is simply lending his approval to decisions taken by others who enjoy no such legal immunity. Recent history points to precisely such a nuance: remember the case of former president Ameenah Gurib-Fakim? When implicated in the credit card scandal linked to Alvaro Sobrinho, she wanted to set up a commission of inquiry off her own bat without government approval and plunging the country briefly into a constitutional crisis. What happened? It was the final straw that pushed her out of the presidency in 2018. And ironically led to a commission of inquiry looking into how she wanted to set up a commission of inquiry. 

Constitutional immunity

The courts too have recognized that president’s decisions are not necessarily above their scrutiny: once again we go back to Raj Dayal’s case. On December 5, 1997, Vinod Boolell delivered a judgement where although he recognized the principle of presidential immunity, he nevertheless added, “it is clear therefore that no order and still less an injunction can lie against the president. But this in no way debars the Judge in chambers from making a pronouncement on the merits of a case involving the president, as in the present case, and a copy of the judgement be communicated to him”. Although Dayal failed to challenge the commission of inquiry being set up, the principle of the courts able to investigate the president’s decisions was established. 

Later, in the same Dayal case, judges Pillay and Narayen on February 2, 1998 acknowledged in another judgement the fact that although generally a president’s decisions taken in his deliberate judgement were not reviewable by a court, nevertheless, “the position would be different, in our opinion, in the case of acts ostensibly performed by the first respondent (the president at the time -ed.) under the constitution or any other law but which are in reality performed by the first respondent in accordance with the advice of some other person or authority, i.e, acts performed by the first respondent in accordance with the advice of some other person or authority where he is bound to comply with the advice given”. Such as, say, setting up a commission of inquiry that has been decided by cabinet. 

This is why Bhunjun’s legal challenge to the Betamax goes to great pains to point out no less than seven times in his affidavit that even though the decision to set up the commission being contested was formally taken by the president, it was “in accordance with advice of cabinet”. To what extent Bhunjun’s attempt to prevent the setting up of the Betamax commission succeeds will depend on how successfully his lawyers manage in convincing the court of this nuance about the real decision-maker, that is cabinet, behind the commission. Whether Bhunjun’s gambit will work, “that will be for the court to decide,” concludes Boolell.