‘It is unlikely that a Supreme Court judge will be influenced by any political motives’
Commission of Inquiry on Betamax
Qs & As
* ‘What might amount to a contempt would be conclusions or findings of the commission that go against the Privy Council’s determination’
By LEX
Lex sheds his legal perspective on Government’s decision to appoint a Commission of Inquiry into the circumstances surrounding the award of the highly politicised Betamax contract and its abrupt termination, costing the taxpayer nearly Rs 6 billion. The Commission will have to tread carefully its mandate on a matter where our final court of judiciary appeal has already delivered its verdict against STC/Government, now a matter of public knowledge. If it does, it may not amount to contempt of the Law Lords, although it will be up to Government whether it will make the findings of the Commission public, and therefore open to more political sniping.
* The President of the Republic has appointed a Commission of Inquiry to inquire into the Betamax contract. What are the roles and limitations of a commission of inquiry?
The purpose of a commission is only to hear evidence, collect facts, draw conclusions and, if need be, make recommendations.
* Is it correct to say that the findings of commissions of inquiry are not legally binding, but they can be highly influential?
After the Commission of Inquiry has completed its investigation, the findings are remitted to the president of the Republic who would then transmit it to the Prime Minister. The findings are not legally binding. And if the report is not made public, people will never know what had been found and recommended. It will be up to the government to decide whether or not the report should be made public.
* The proposed commission of inquiry on Betamax comes in the wake of the earlier judgement of the Supreme Court and the recent one by the Privy Council. It will no doubt act independently of the government, but its conclusions might be leveraged for political purposes. Could that be its only aim?
Since the commission of inquiry on Betamax will be chaired by a Supreme Court judge it is unlikely that the judge will be influenced by any political motives. What may happen, depending on the findings, conclusions and recommendations, politicians may use it for political purposes. We can recall how the commission of inquiry of Messrs Badry and Daby chaired by late justice Victor Glover impacted the political scene and weakened the Labour party in the eighties.
* What would a Judge, who has been called upon to inquire into the “circumstances” of the award and termination of a business contract between a government and a private party be looking at?
According to the press, the commission will be asked to investigate the circumstances of the award of the contract and its rescission. The commission will analyse the circumstances under which the contract was awarded. A number of serious allegations of corruption were made against the government of Navin Ramgoolam by the late Sir Anerood Jugnauth and Roshi Bhadain. These will have to be investigated.
The commission will also have to hear the explanations of those who were behind the arbitrary rescission. Possibly the commission may inquire to find out whether there was a cheaper way of getting out of the contract especially as the abrupt rescission has cost the treasury and the country nearly Rs 6 billion.
* The judge will form an opinion or a conclusion on the basis of the evidence and according to the provisions of the law. To what extent can a former Permanent Secretary and a former Director of Procurement and Supply, acting as Commissioners, be of assistance to the presiding judge in this matter?
Both a former Permanent Secretary and a former Director, Procurement and Supply, acting as Commissioners, are deemed to be persons of experience in administrative and procurement matters respectively. Their contribution will be of great assistance as long as they do not allow themselves to be swayed by political influence.
* Do the terms of reference of the commission of inquiry, that is to inquire into the “circumstances” of the award and termination of the contract, indicate that these “circumstances” have not been examined by the Supreme Court nor by the Privy Council?
This a very pertinent question. The arbitrator in the case analysed the circumstances leading to the award of the contract. Both the Supreme Court and the Privy Council did the same exercise though they came to opposite conclusions. The Supreme Court found the award of the contract was illegal whereas the Privy Council determined it was not. Surely the commission of inquiry will not go back on the conclusions of the Privy Council. Would it be permissible for the commission, after analysing the circumstances, to conclude that corruption tainted the award of the contract? That would be tantamount to sitting on appeal on the judgment of the Privy Council.
* This suggests that the commission of inquiry may find itself in an awkward situation in view of the conclusions of the Privy Council…
Yes and no. So long as the judge and her assessors tread carefully and do not impinge on the prerogatives and findings of the Privy Council but limit themselves to a purely fact-finding exercise with regard to the circumstances of the award and rescission of the contract, they will be home and dry. Admittedly, they’ll have to tread carefully.
* A suggestion has been made that the setting up of the commission of inquiry into the Betamax case would constitute a contempt of the Privy Council. If that is indeed be the case, then wouldn’t this amount to tying our sovereignty to the oversight of the Law Lords?
The appointment of the commission of inquiry may not itself constitute a contempt of court. What might amount to a contempt would be conclusions or findings of the commission that go against the Privy Council’s determination.
* The commission of inquiry will make an opinion on whoever directly or indirectly participated in the decision-making process, at Cabinet level, that culminated in the award and termination of the contract. Are ministers collectively responsible for any wrong decision? Or can blame be pinned on any individual minister?
Once a decision is taken by cabinet, ministers are bound by the principle of collective responsibility. But each minister bears the responsibility of what happens in his own department.
* Commissions of inquiry have been criticized for several reasons: ‘for being unfair to the persons who are the subject of unfavourable comments, made during public hearings or in the commission’s report; for costing too much; and for taking too long’. Justice Gomery considers that ‘they are outweighed by the benefits since they not only assist the government in taking remedial action but also tend to restore public confidence in the process being reviewed’. What do you think will come out of this Betamax inquiry?
In the past commissions of inquiry made unfavourable comments and adverse observations. However, the Supreme Court has never quashed the comments or observations on the ground that they were not findings but mere observations. How would the lay public make a distinction between observations and findings? The people targeted remained without a remedy.
A commission of inquiry is beneficial if an honest government acts on the findings and recommendations. But if the report is shelved or is put to rest in a drawer somewhere in the corridors of power, what benefits can be derived from an inquiry?
* Published in print edition on 27 July 2021
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