“The ongoing Betamax investigation illustrates how inquiries under the Commissions of Inquiry Act can drag on for years”

The Public Inquiries Act: Towards Greater Transparency?

Qs & As

* ‘The judiciary should also be required to deliver judgments in a timely manner’

By Lex

The recent Cabinet decision to replace the long-standing Commissions of Inquiry Act with the Public Inquiries Act heralds a significant shift in how matters of public importance are investigated. This week’s Q&A section delves into the key aspects of this legislative change, addressing concerns about transparency, accountability, and the implications for public trust. Lex explores the Act’s provisions, its departures from past practices, and the questions it raises regarding the balance of power and the pursuit of justice.

* The Cabinet resolved, last Friday, to repeal the outdated Commissions of Inquiry Act (1944) and subsequently replace it with the Public Inquiries Act, a ‘modern, more transparent, and legally robust framework.’ This act will establish a Board of Inquiry with expanded powers and a broadened scope for the conduct of ‘public inquiries into matters of significant public importance.’ What specific gaps or weaknesses in the Commissions of Inquiry Act necessitated this new framework?

Under the Commissions of Inquiry Act, the President appoints the commission, including its chairperson and any necessary commissioners. The Act does not specify a timeframe for the submission of findings to the President.

Furthermore, it may not guarantee an individual, against whom allegations are made, an opportunity to defend themselves. Both the Supreme Court and the Privy Council have overturned findings that adversely affected individuals who were denied the right to make representations.”

* Under this bill, matters of public concern are subject to inquiry solely at the Prime Minister’s discretion, excluding any formal role for opposition members or civil society groups in initiating such inquiries. This appears to maintain the same structure as the previous Commissions of Inquiry Act. Shouldn’t the government have pursued a more significant departure from the past, in a spirit of ‘rupture’?

It is important to note the distinction: under the existing Commissions of Inquiry Act, the government holds the authority to appoint a commission of inquiry. However, the proposed Bill shifts this power to the Prime Minister, enabling them to establish a Board of Inquiry. This authority is invoked when the Prime Minister forms an opinion that an event has either caused or has the potential to cause public concern.

Additionally, the Prime Minister may act when there is public concern regarding the potential occurrence of an event, if they deem an inquiry to be in the public interest or for public welfare. The proposed legislation does not preclude the Opposition or other stakeholders from making representations to the Prime Minister regarding any matter of concern.

* In the House of Commons, England, a sufficient number of MPs can initiate various select committee investigations to scrutinize government actions and hold them accountable. Wouldn’t it have been advisable to implement a similar provision in our National Assembly, allowing a defined number of MPs to request and initiate public inquiries?

Whether or not a specific provision exists, members of Parliament are able to make representations to the Prime Minister, urging an inquiry into matters of public interest.

* Regarding the terms of reference for a public inquiry, these will be clearly defined, outlining the subject matter, nature, and extent of the investigation. However, it’s often the specific terms of reference that determine what gets investigated and what is effectively swept under the carpet. We have to trust that the Prime Minister will act in the public interest, don’t we?

Until evidence suggests otherwise, we should operate on the presumption of good faith regarding the Prime Minister’s use of their power. There is no reason to think that the Prime Minister will use his power in an abusive manner. However, the media and the Opposition retain their ability to hold the Prime Minister accountable for any perceived abuse.

* The Public Inquiries Bill (PIB) states that ‘the Prime Minister may also, at any time, amend the terms of reference of a Board of Inquiry in public interest or for public welfare.’ Did a similar provision exist under the Commissions of Inquiry Act? This provision raises concerns about the potential for changing the goalposts for political expediency, doesn’t it?

We should refrain from viewing all matters through a purely political lens. It’s undeniable that inquiries into past government conduct or the financial affairs of former ministers will possess political dimensions. However, this does not necessarily imply political bias. These cases must be differentiated from inquiries such as the Betamax contract investigation, initiated by the preceding government, which exhibited clear political motives.

* But whoever is the Prime Minister once the Public Inquiries legislation is enacted will have significant control over a public inquiry. They initiate the inquiry, set and amend the terms of reference, and appoint the members. Could this create potential for political influence?

Even under the Commissions of Inquiry Act, governments could appoint commissions for political reasons, as demonstrated by the Betamax case. However, it’s crucial to avoid perceiving political influence in every action, as this would hinder effective governance. It’s a political reality that not all government decisions will be universally accepted. Nonetheless, good governance has to prevail.

* We also learn from the Public Inquiries Bill that, in essence, a Board of Inquiry will act as a fact-finding body that investigates and reports on matters of public concern. It can point out potential legal issues, but it leaves the actual determination of guilt or liability to the courts. This means the entire process will have to start anew, with police investigations continuing until the Director of Public Prosecutions (DPP) makes a decision. Doesn’t this create unnecessary duplication of effort and potentially compromise the timeliness of justice?

A key distinction exists between the current Commissions of Inquiry Act and the proposed Bill. The Act contains no provisions concerning recommendations on civil or criminal liability. In contrast, the Bill explicitly states that the Board of Inquiry shall not make determinations regarding any person’s civil or criminal liability. Nonetheless, the Board is permitted to draw inferences about potential civil or criminal liability within its findings and recommendations.

Furthermore, if the Prime Minister or the Director of Public Prosecutions (DPP) concludes that a subsequent criminal investigation is warranted, such an investigation will be initiated. This is necessitated by the constitutional safeguard against self-incrimination, which ensures that any incriminating evidence provided by a witness before either the Commission or the Board cannot be used against that witness in criminal proceedings.

*According to the Bill, a time limit for the completion of a public inquiry will be set. This suggests that a defined timeframe will hold the Board of Inquiry accountable for its progress?

The introduction of a fixed deadline for inquiry reports is a welcome change. The ongoing Betamax investigation illustrates how inquiries under the Commissions of Inquiry Act can drag on for years. In contrast, the proposed Bill requires the Board of Inquiry to submit its report to the Prime Minister by a specified date. The question remains whether the Board will have the authority to request extensions for valid reasons.

* Shouldn’t the judiciary also be subject to time limits for the delivery of judgments, to ensure timely justice?

Indeed, the judiciary should also be required to deliver judgments in a timely manner. But who will bell the cat?

* The Bill makes no mention of whether the Chairperson of the Board of Inquiry must be a retired or sitting Judge of the Supreme Court, or a judge from the Commonwealth. Given that the chairmanship and remuneration of past Commissions of Inquiry have led to criticism and controversy, what would be the best course of action going forward?

The Prime Minister will have the discretion to appoint individuals with relevant expertise to conduct inquiries. Remuneration will be determined based on the inquiry’s duration.”

* The Board of Inquiry must submit its findings and recommendations to the Prime Minister, who then has 30 days to table it in the National Assembly and publish it in the Gazette. This mandated publication appears to be a welcome change from past practices under the Commissions of Inquiry Act, where some reports were sometimes not made public, and quietly shelved. What’s your take on that?

This is a positive addition to the law. For transparency, it is essential that inquiry findings be made public. This will enable the public to judge whether the inquiry was justified in public interest.

Mauritius Times ePaper Friday 28 March 2025