‘This apparently is the first time that we will have a commission of inquiry with its hands tied’
Commission of Inquiry on Betamax-STC Contract
Qs & As
‘It might be embarrassing for a sitting judge to chair such a commission
as the judgment of the Supreme Court was reversed by the Privy Council’
By LEX
What will a commission on inquiry into the Betamax-STC contract relating to the transport of petroleum products to Mauritius achieve other than what have come out from the hearings of the Singapore Arbitration Centre, the Supreme Court and finally the Privy Council? Much will depend on the exact terms of reference of the commission of inquiry, but it is widely suspected, rightly or wrongly, that the Government’s decision would have been politically motivated. Lex throws light on the processes relating to the setting up of commissions of inquiry and the subsequent reports. Outcomes post the reports depend a lot on political will – or action by the public.
* What purpose does a commission of inquiry serve?
The purpose of a commission of inquiry is to only gather facts and make observations in compliance with the terms of reference in the document appointing it on a number of matters like the conduct of a public officer; the management of a department of the public service; a local or public institution and matters of public interest.
* Who holds the power to institute a commission of inquiry, decide on its terms of reference and appoint its commissioner/s?
The power vests in the president of the Republic on the advice of the Cabinet.
* What happens when a commission of inquiry submits its findings?
Once the inquiry is over, the chairperson submits his/her report and recommendations to the president of the Republic, who then transmits it to the Prime Minister. The Cabinet will thereafter peruse the report and decide whether to make it public or not.
The government may also decide to shelve the report or take action if the conclusions establish acts of impropriety by public officers or the manager of a public department. If a criminal offence is revealed, a police investigation may be initiated.
* We understand that commissions of inquiry are also ‘aimed at encouraging transparency through fact finding and providing input for future investigation or criminal proceedings, if necessary’. This means that a mechanism for follow-up has to be instituted. Have we met the expectations of the public in that regard?
Certainly not. The most glaring example is the last commission of inquiry on drugs that revealed the close links of many top shots either in the legal profession or the police force with drug traffickers and barons. What has happened? Nothing.
There were also recommendations on the overhauling of the ADSU and on the need to improve the surveillance of our coasts and our ocean. What happened? The Wakashio disaster has revealed in no uncertain terms the amateurish manner in which our coasts and ocean are monitored.
And recently we have witnessed the arrest of drug traffickers who under cover of their fishing vessels were associated with the importation of massive quantities of drugs to Mauritius.
* What if there is no follow-up with regard to the findings and recommendations of a commission on inquiry?
Nothing can be done. It is for the public to judge that type of inaction.
* Besides follow-up on the Lam Shang Leen Drug Commission’s report, we have yet to take cognizance of the findings of the commission on inquiry instituted to inquire into and report on all the circumstances relating to the purported appointment of a commission of inquiry by Mrs Ameenah Gurib-Fakim, former President of the Republic. What should we make out of these two matters?
The commission’s findings are not binding and there must be political will by those who establish them to enforce them. In the absence of political will, there is not much that can be done. According to information available, the findings of the commission on inquiry on former president Ameenah Gurib-Fakim have not yet been submitted to the president, so one cannot comment on them. We also have the commission of inquiry on Britam that is still pending.
* Without putting in question the integrity of anybody, does it however matter that a retired judge should be called to chair a commission of inquiry, or would transparency be best served with a sitting judge of the Supreme Court?
Ideally it should be a retired judge. It might be embarrassing for a sitting judge to chair such a commission as the judgment of the Supreme Court in the Betamax case was reversed by the Privy Council. That said, the decision rests with the government. It must be pointed out, and this is said without in any way attacking the honesty or integrity of anyone, that the perception in the public is that those who are called upon to chair commissions of inquiry or fact-finding committees must be or appear to be in the good books of the regime of the day.
* Cabinet has taken the decision to set up of a ‘Commission of Inquiry to be presided by a Judge to inquire into, inter alia, the circumstances in which the contract for transport of petroleum products to Mauritius (Contract of Affreightment) was awarded to Betamax Ltd and the circumstances which subsequently led to the termination of the said contract’. What’s the point of this commission in inquiry when the matter has already been beard by the Supreme Court, and subsequently by the Privy Council?
Many comments have been made on the pertinence and relevance of establishing a commission of inquiry on the Betamax case. What new facts will emerge remains to be seen. Already many of the salient facts have been revealed either on the circumstances surrounding the award of the contract and its rescission. What next? Maybe there is a political motivation behind all this. Once the findings are made public, if at all they are, they would surely be exploited for political ends.
* The Cabinet decision refers only to an inquiry into the circumstances in which the Contract of Affreightment was awarded and its termination. Do we therefore conclude that the legality of the award and its termination will not be looked into?
This is unlikely. The highest court, namely the Privy Council, has ruled that the contract was not illegal. The commission should look into the circumstances surrounding the award and its rescission and nothing more.
* Should we also conclude that the commission of inquiry will also seek to identify those parties who, on the one hand, facilitated or awarded the contract to Betamax (not deemed illegal by the Singapore Arbitrator and not against the public policy of Mauritius by the Privy Council) and, on the other hand, terminated the said contract (successfully contested by Betamax before the Arbitrator and Privy Council?
Who are the parties? The contract was awarded in 2009 when Navin Ramgoolam was Prime Minister. There have been allegations that Vikram Bhunjun’s ties with his brother-in-law Rajesh Jeetah, then Minister in the Ramgoolam Cabinet, would have played in his favour. That remains to be proved and no doubt the commission will delve into that aspect.
The Leader of the Opposition, Xavier Duval, who pressed for the setting up of a commission of inquiry, was a member of the Ramgoolam government in 2009 and he is deemed to have consented to the award. He was also a member of the Sir Anerood Jugnauth government when the contract was rescinded. Though he has publicly stated he was against the rescission, he did not resign when the contract was rescinded. He also did not publicly make known his disagreement with the award of the contract to Betamax.
Very interestingly, Pravind Jugnauth was minister of finance in the Ramgoolam government in 2010, and it would appear he had nothing to say against the contract. Why?
Showkutally Soodhun was also a minister in the then Ramgoolam government. He stood up in Parliament to say, in reply to a question addressed by Paul Bérenger, that there was nothing objectionable to the contract.
Roshi Bhadain, perceived to be the prime promoter behind the rescission, is now an ally of both Paul Bérenger and Xavier Duval.
All this crowd should be heard by the commission of inquiry, and it will be interesting to follow their evidence before the commission. It is to be hoped that they will come forward voluntarily; if they don’t, they should be summoned… they cannot refuse to attend.
* Could it be expected that the commission of inquiry might go against the findings of the Singapore Arbitrator and the Privy Council?
Certainly not. It will have to tread carefully, but again all depends on its terms of reference.
* What latitude will the Commission have?
It would appear that this is the first time that we will have a commission of inquiry with its hands tied.
* Published in print edition on 29 June 2021
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