The issue of the immunity of the president of the Republic has once more resurfaced in the light of the findings of the commission of inquiry on the acts of former president Ms. Ameenah Gurib-Fakim.

It is not the first time that the issue of the immunity is being debated. However, in the light of the findings and recommendations of the commission of inquiry, the question assumes all its importance. Section 30A of the constitution confers immunity on the president and the vice-president. The section provides that 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 and no process, warrant or summons shall be issued or executed against the president or the vice-president during his term of office. That section must be read together with section 64(5) of the constitution that provides that where the president is required to act in accordance with the advice of or after consultation with any person or authority, the question whether in fact he has so acted shall not be called in question in any court of law. It is clear that whatever the president does that is in conformity with the constitution and the law of the land, cannot be questioned in a court of law.

Nonetheless, there have been attempts to make a distinction between acts performed by the president in his own deliberate judgment, that is, when he acts without having to consult anybody, and when he acts on the advice of another person or the cabinet, or upon the advice of the prime minister or a minister. That distinction was made by Chief Justice A.G. Pillay and Judge Narayen in a case in 1998, where the former commissioner of police, the late Raj Dayal, sought to challenge the decision of the president to appoint a commission of inquiry to look into certain acts performed by the late commissioner of police.

In the Betamax case, the decision of the president to appoint a commission of inquiry to look into the circumstances of the award of a contract in 2009 for the transport of oil products to Mauritius was challenged and the case was directed against the president and others. The Supreme Court, with judges Benjamin Joseph and Rita Teelock, did not follow the reasoning of the 1998 case. The court held that the immunity conferred on the president of the Republic is an absolute one, whether he acts in his own deliberate judgment or on the advice of cabinet, a minister or any other person or authority. The court in the Betamax case approved my own decision in a case where the late Raj Dayal was seeking an injunction to stop the commission of inquiry from going ahead. I explained the basis and rationale behind the conferring of immunity as follows: “It may be recalled that this section (section 30A) was introduced in our constitution in 1991 when the supreme law of the land was amended to make Mauritius a Republic [Act No.48 of 1991]. Presumably, parliament thought this necessary because the predecessor of the president was the governor general and was himself the representative of Her Majesty the Queen in Mauritius and, as such, was considered as representative of the Crown. In the United Kingdom, it is settled law that no order, summons, or process can issue against the Crown […] And it can be assumed that section 30A was enacted in order to confer an immunity akin to that enjoyed by the Crown on the president and vice-president.”

Under section 28 of the constitution, it is the duty of the president to obey the constitution, uphold and defend it and ensure that the institutions of democracy and the rule of law are protected. That the president should follow and act on the advice of the cabinet or some other authority where this is prescribed, cannot be disputed. So long as the advice on which the president acts is in conformity with the constitution and the rule of law and complies with good governance and ethical principles, no criticism can be levelled against him/her. If it is otherwise, s/he either resigns or is removed from office as provided by the constitution.

Since the president enjoys absolute immunity as decided by the Supreme Court, the question remains how to deal with a president who flouts a provision of the law or the constitution. Where the president violates the constitution or is involved in a serious act of misconduct, s/he may be removed from office. A special procedure is provided for the removal. There must be a motion with the particulars of the ground for removal that should be supported by two thirds of the members of the national assembly. It is also permissible to suspend the president if the motion is voted. A tribunal consisting of persons who hold or have held high judicial office in any part of the Commonwealth will investigate the question of removal and submit its report to the speaker. If removal is recommended, a motion is voted by a majority of the members of the national assembly.

If a president is removed or resigns, can s/he be investigated or prosecuted for any illegal act that s/he may have committed whilst s/he was in function? The constitution is clear. The immunity is applicable for or in respect of any act done or purported to be done by the president in the performance of his/her functions. Committing an illegal act will certainly not be considered an act that falls within the functions of the president and a president who is no longer in office may be amenable to an investigation and a possible prosecution as any citizen for an illegal act.

Conferring an absolute immunity on the president similar to that enjoyed by the British monarch insulates the president from any judicial proceeding and protects him/ her. This immunity may have created more problems than it solves in the context of how it is framed in the constitution.