“Over and above the comment from Judge Lam Shang Sheen, not much attention seems to have paid to what Veeren himself said when he deponed before the Commission of Inquiry. He reportedly made a very serious allegation about a deal concluded on remission of his sentence during an electoral campaign.”

The New Year had hardly begun than the first scandal broke out: the son of Police Commissioner Dip’s 12-month jail sentence was wiped out by the Commission on the Prerogative of Mercy. Apart from the outrage and feeling of injustice felt by many, the commission came to the limelight in spite of itself and disturbing questions started being asked. We talk to Milan Meetarbhan, constitutional lawyer about the issues being publicly debated and the questions raised.

The Commission on the Prerogative of Mercy (CPM) has made the headlines after it has recommended to the president the pardon of the commissioner of police’s son. Some people are shocked while others think it’s a storm in a teacup. What are your views as a constitutional lawyer?
I believe it is right that there should be a public debate from time to time to revisit the roles and functions of institutions, possible avenues for abuse which have been identified, safeguards needed, equality before the law and so on. However, generally, it’s usually a high profile case or a highly publicised one that triggers such a debate. To that extent, the fact that the media has given extensive coverage to the grant of a pardon, or in one case a “respite”, has first enabled the public at large to be aware of a process involving the Commission on the Prerogative of Mercy and the president and also given an opportunity for lawyers and commentators to consider different interpretations of legal provisions and possible loopholes or areas for reform.

What is the point of having of commission of political nominees that can take decisions to override courts of law?
From a constitutional perspective, the issue about other branches of government intervening in what is essentially a judicial process is always a thorny one, across jurisdictions.  In Mauritius, the courts have come down heavily on attempts by the legislature to, in effect, reverse a judicial decision or to “usurp” the role of the judiciary by denying bail or imposing mandatory sentences, as it’s judges who should decide in any particular case on whether or not bail should be granted or on an appropriate sentence. However, the constitution itself provides for the president to grant to any person convicted of an offence a pardon, either free or subject to lawful conditions. In doing so, the president acts in accordance with the advice of a Commission on the Prerogative of Mercy whose members are appointed by him “in his in own deliberate judgment”. However, the constitution does not set out the criteria on which the commission’s advice will be based. There is no law or guideline which does that.

What exactly is the role of the president? A mere rubberstamp?
A strict reading of the relevant constitutional provision would show that in the exercise of his powers in respect of pardons, respites, substitution of forms of punishment handed out by the courts, the president can only act in accordance with the advice of the commission. The president may ask the commission to reconsider any advice tendered but once the commission has done so, the president has to act in accordance with the advice. According to this interpretation of the constitution, the president does not really have a discretionary power in this respect. He formally signs off the order but the decision is really that of the commission. However, the president not only appoints the members of the commission, but he also has the power to revoke any appointment. The constitution does not set out limitatively the grounds on which he can revoke the appointment but makes it clear in deciding whether to revoke any member, the president acts in his own deliberate judgment. Though the president is expressly empowered to appoint members of the commission acting in his own deliberate judgment we don’t know whether in practice any president has actually done so or whether the president formally appoints nominees of a prime minister.

What does all this mean as far as the apportioning of responsibilities is concerned?
What this means is that the president clearly has to assume personal responsibility for the competence, integrity etc. of the persons he chooses to appoint IN HIS OWN DELIBERATE JUDGMENT as members of the commission but it is not so clear that he has a discretionary power not to act on the advice tendered by the commission.

Former Judge Lam Shang Leen, in his report on the drug trafficking situation, pointed out that the CPM had granted remission to the notorious drug dealer Peeroomal Veeren and that that was the wrong signal. What do you think of that?
I have read the rather scathing remarks of the then chairman of the commission about this finding of the Commission of Inquiry on Drugs. Over and above the comment from Judge Lam Shang Sheen, not much attention seems to have paid to what Veeren himself said when he deponed before the Commission of Inquiry. He reportedly made a very serious allegation about a deal concluded on remission of his sentence during an electoral campaign.

What he said was that he had financed the political campaign of the MSM, that he had handed money over to Mahen Gowreesoo and Geeanchand Dewdanee for Pravind Jugnauth and that “Zot ti dir zot pou réouver mo case.”
Well, the fact that he was actually granted a remission should have in any democracy given rise to a serious investigation over his allegation. That was not necessarily the task of the Commission of Inquiry but that of other law enforcement agencies. We are not aware whether such an investigation was carried out.

No one is. In an interview with late Sir Victor Glover, the latter told me that he did not agree with making the commission’s decisions public because “The Head of State takes a decision after being advised by the commission, not only whose chairman can be trusted but whose other members too are people whom one can trust.” Who are the members of the commission and why should we trust them?
First, I am not sure that it is in fact right to say that the Head of State takes a decision. Formally, he signs off on it. But the reality is that a “decision” is made by the Commission on Mercy. Secondly, I do not believe that the people can just simply and safely trust those who are appointed to any institution by politicians or their nominees. Indeed, we know that recent opinion polls have shown that trust in public institutions is on the decline. There is no doubt that at various points in time some individuals appointed to various institutions have in fact had the trust of people because they earned that trust. If persons acting professionally for the prime minister are appointed to so-called independent institutions I am not sure that the people can be expected to blindly trust these persons to act independently and impartially. In fact, some of them have in recent times given the people plenty of reasons to do exactly the contrary.

 “The exercise of the president’s powers under the relevant provision of the constitution (his formal powers because the actual powers are probably those of the commission) may result in an extra-judicial decision varying the decision of a court of law.”

But the commission has been in existence for 50 years and its work has never really been questioned. Why is there a sudden outcry?
What people don’t realise is that the expectations and democratic norms have evolved considerably over the last 50 years. They also choose to ignore that there are currently serious concerns about the independence of our institutions and consequently even if a particular institution is acting independently and impartially, it cannot escape the misgivings about institutions in general.

This particular commission seems to work in utter secrecy. Do you agree that its recommendations should remain a state secret?
I believe that the jury is still out as to whether the deliberations of the commission or the grounds on which the commission’s recommendations are made should be made public. There may be reasons as to why these should not be made public as, for instance, if a recommendation is being made on humanitarian grounds it would not always be advisable to disclose publicly personal details as these would amount to a breach of privacy. However, I believe that a strong case can be made for a list of all persons who have benefited from a pardon etc. to be published and the extent to which the president’s order varies the earlier decision of a court of law to be stated publicly even if the reasons for doing so were not to be disclosed.  Charging a person with a criminal offence, the proceedings before the trial court or subsequently the appellate courts and the decisions of each of these courts are all a matter of public record. There is no reason why the variation of the final judicial decision should not also entail a matter of public record. There is no reason why this should be a state secret. Furthermore, if the pardons, remissions etc. are all kept as state secrets, there is always the risk in any jurisdiction of abuse of the constitutional powers on granting pardons.

When a court of law hands down a verdict and a higher court upholds it, is it Ok for another institution manned by political nominees to overturn it?
It could be argued that the commission in effect does not only grant mercy but it acts as a superior court of appeal because it can reduce a sentence or substitute another sentence imposed by a court of law. To that extent, it could also be argued that though we always assume that the Privy Council is the highest court of our land, in reality, it is like having a still higher court of appeal in so far as, for instance, sentencing is concerned. However, strictly speaking, we cannot talk of verdicts being “overturned” by the commission. The commission can advise the president to grant a pardon to a convicted person or to reduce his sentence or otherwise vary the terms of the courts’ decisions. The fact remains that, at the end of the day, the exercise of the president’s powers under the relevant provision of the constitution (his formal powers because the actual powers are probably those of the commission) may result in an extra-judicial decision varying the decision of a court of law.

Can the CPM’s decision be subject to a judicial review?
Under our constitution, even where a commission acts independently, its decisions can still be reviewed by the Supreme Court. However, the court will basically determine if the commission has acted in breach of the constitution. Though the president enjoys immunity from court proceedings, since the actual decision-making process with regard to pardons etc. is that of the commission, the decision of the commission may in certain cases be subject to review by the Supreme Court and the Privy Council. Even in the United Kingdom, where granting pardons was historically the exercise of a royal prerogative, the current law on this matter has been considerably modernised. The website of the House of Commons library has a chapter entitled: “Royal prerogative of Mercy – A Question of Transparency”. Transparency and Accountability are the keywords. Not unconditional trust.

As you know Mauritian courts have now decided that the decisions of the director of public prosecutions (DPP) are subject to judicial review in spite of the express discretionary powers granted to the DPP under the constitution with respect to decisions to prosecute or not to prosecute. There is no reason why the decisions of the commission should not also be reviewable.

“If a court of law can still reverse a conviction and there is an appeal pending, why should another body be empowered to pre-empt the decision of the court and quash the conviction?”

While the work of the CPM is being criticised, no one has recommended doing away with it? Does it have its raison d’être?
I do not believe that we have to do away with the commission. It has its raison d’être. If there are good reasons why mercy should be shown in certain cases, I would rather have this decision in effect made by an independent body rather than by a politician.

But, at the end of the day, these decisions ARE made by politicians, through their political nominees, aren’t they?
How independent and impartial the members of the commission are and how they should be appointed in the first place are matters for debate. But the present legal vacuum in which the Commission operates as there is no law or guidelines on how and when applications can be made and how the applications will be processed and determined must change. There must be a rules-based framework and ultimately the court will be empowered to decide whether the decision-making process was consistent with the set rules and decide on the fairness or otherwise of the decision-making.

Some lawyers are arguing that the presidential pardon is illegal as the Dip's case was still pending before the Privy Council when the pardon was granted. Do you share that view?
I do not wish to comment on any particular case as I don’t have all the facts of the case. However, I understand that some of my lawyer colleagues have raised an important point as to when an application can actually be made to the commission. If a convicted person has filed an appeal against his conviction or sentence and the appellate court has not yet decided the case, can the commission and the president in fact pre-empt the decision of the appellate court by varying the decision of the trial court? For all intents and purposes, it can be argued that if there is an appeal pending, the appellate court could quash the conviction so why should an extra-judicial body pre-emptively intervene in the process and grant mercy when the judicial process itself could have led to a quashing of the conviction? The question one may ask is not necessarily one of law but of logic: If a court of law can still reverse a conviction and there is an appeal pending, why should another body be empowered to pre-empt the decision of the court and quash the conviction? The appellate court could have quashed the conviction on the grounds that there had been a mis trial or the trial court got it wrong. But, instead, it’s another body which decided that the sentence should be reduced or quashed.