Discours d’Ashok Subron sur  » The Public Inquiries Bill « 

Rezistans ek Alternativ ....commend this Bill to the House.

Le ministre de la Sécurité Sociale a pris part aux débats sur ce projet de loi qui vient changer la donne sur les Commissions d’Enquêtes dont les rapports ne vont plus rester dans les tiroirs et seront déposés au Parlement.

Madame Speaker,

This Bill opens a wind of change. This government brings yet another visionary tool to reshape public interest issues in Mauritius.

The Bill, the Public Inquiries Bill, which will replace the more than 80-years-old Commission of Inquiry Act, heralds a significant shift on how matters of public interest and public importance will henceforth be investigated, for the benefit and betterment of Mauritian society and its people.

My party, Rezistans ek Alternativ, as a partner in the Alliance Du Changement fully supports this Bill.

A commission of inquiry is one of many bodies available to a country to inquire into various issues, sometimes on controversial ones.

Commission or Board of Inquiry report findings, give advice and make recommendations. While their findings are not legally binding, they can be highly influential and act as drivers of societal progress.

Commissions of Inquiry reflect social movements and social concerns of a particular moment.

Madame Speaker,

Commissions of Inquiry, can be great tool of social emancipation and progress.

In Mauritius, social upheavals against the harsh exploitation under colonial capitalism, produced two major Colonial Commissions of Inquiry. The dialectics of social struggles and Colonial Commissions of Inquiry laid the foundation of social progress in Mauritius.

After the major upheavals, riots, strikes in various parts of Mauritius in 1937, which resulted in the killing of 3 labourers, the British colonial government instituted the Hooper Commission of Inquiry. The Hooper Commission, lifted the ban on workers to organise and gave birth to the right for the workers of Mauritius to unionise in 1938.

The 1943 strike of labourers, when Anjalay Coopen and her comrades lost their lives, prompted the colonial government to institute the Moody Commission of Inquiry in 1944. The Moody Commission paved the way for the genesis of the welfare system in Mauritius and the birth of local democracy rural Mauritius, through the creation of Village Councils.

We can also refer to some examples in other countries

In South Africa, a variant of Commission of Inquiry was set up in 1996 after the end of apartheid. The Truth and Justice Commission of South which was court-like restorative justice. Set up by Nelson Mandela and chaired by Desmond Tutu, the commission invited witnesses who were identified as victims of gross human rights violations to give statements about their experiences, and selected some for public hearings. Perpetrators of violence could also give testimony and request amnesty from both civil and criminal prosecution. The Institute for Justice and Reconciliation was established in 2000 as the successor organisation of the TRC.

In Royal Commission into Aboriginal Deaths in Custody (1987–1991)
In Australia, prompted by public outcry over the high number of Indigenous deaths in custody during the 1980s, Royal Commission into Aboriginal Deaths in Custody (1987–1991). It investigated 99 cases between 1980 and 1989. While it found no evidence of unlawful killings, it highlighted systemic issues such as inadequate care and the impact of alcohol abuse. The commission made 339 recommendations aimed at reducing Indigenous incarceration and improving custodial conditions.

Here again we see the dialectical relation between historical social struggles and institutional commissions of inquiry, resulting in social emancipation and or human rights advancements.

Madame Speaker,

Yet, Commissions of Inquiry or Boards of Inquiry can be and have been used as tools against political opponents.

While the primary purpose of such commissions is to investigate matters of public interest and provide recommendations, they can be strategically manipulated to target and undermine political rivals.

For instance, a commission might be established to investigate a particular matter, but its terms of reference are subtly designed to ensnare a specific political figure or party. The commission’s findings, regardless of their validity, can be used to damage the reputation or political standing of the target, even if there’s no actual wrongdoing

Examples are numerous in many countries and in Mauritius too. The latest two of such politically motivated Commissions of Inquiry in Mauritius, being the Betamax Commission of Inquiry and the Commissions of Inquiry set up in the context of the institutional crisis, the Tug of War under the previous regime between the Presidency and the then Prime Minister.

Madame Speaker,

REA Supports this Bill for the following reasons:

An updating after 80 years was more than necessary.

More so, that some inherent residual inconsistencies and clumsiness since the advent of Independence, and Republic in 1992, needed to be addressed and cleared in law, so as to leaves no ambiguities, no misuse, as we have seen in the last wrangle, under the previous regime, between the Presidency and the then Prime Minister.

First, let us mention that the Constitution of Mauritius, with the advent of Independence in 1968 and the Republic in 1992, established in section 64, the clear line of demarcation of the Prime Minister and the Exercise of President’s functions.

Let me quote:

64 Exercise of President’s functions

(1) In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet except in cases where he is required by this Constitution to act in accordance with the advice of, or after consultation with, any person or authority other than the Cabinet or in his own deliberate judgment.

When Mauritius became a Republic, various amendments were brought to various pieces of legislation in Mauritius in 1991. The Commission of Inquiry Act 1944 was one of the legislation.

There were 10 amendments brought to replace wherever it appears the “Governor General” with the “President”.

Thus the Commission of Inquiry Act 1944, starting with Section (1) 2, stated the following:

1. Appointment of Commissions of Inquiry
(1) —

(2) The President may issue a commission appointing one or more Commissioners and authorising such Commissioner or Commissioners, or such quorum of Commissioners as may be specified in the commission, to inquire into the conduct of any officer in the public service, or into the conduct or management of any department of the public service, or of any public or lo- cal institution, or into any matter relating to the public service, or into any matter of public interest or concern, or into any matter in which an inquiry would be for the public welfare.

Thus, when reading the Commission of Inquiry act 1944, separately from section 64 of the Constitution, one can come to erroneous conclusion that the President of the Republic can appoint a Commission of Inquiry. This was the erroneous reading which brought the Constitutional crisis between the previous Prime Minister and then President of the Republic.

This was confirmed THE COMMISSION OF INQUIRY ON MRS A. GURIB-FAKIM
former PRESIDENT OF THE REPUBLIC.

At Page 156, Paragraph 8.2 of its Report, the COMMISSION concluded on the following:

8.2 Violation of section 64(1) of the Constitution

It is beyond dispute that Mrs Gurib-Fakim also violated section 64(1) of the Constitution when she set up the Commission of Inquiry on 16 March 2018. The Commission of Inquiry was set up pursuant to section 2(2) of the Commissions of Inquiry Act. In the exercise of her functions under such a law, Mrs Gurib-Fakim was not empowered to act otherwise than in accordance with the advice of Cabinet. Mrs Gurib-Fakim could only exercise her functions of appointing a Commission of Inquiry pursuant to a law, which is the Commissions of Inquiry Act, “in accordance with the advice of Cabinet”.

By virtue of the application of section 64(1) of the Constitution, the appointment of a Commission of Inquiry was not therefore a function which the President could perform ‘in his own deliberate judgment’ or in any other manner except in accordance with the advice of Cabinet.

Mrs Gurib-Fakim violated the provisions of section 64(1) of the Constitution when on 16 March 2018 she proceeded to set up the Commission of Inquiry upon her own initiative, without the advice of Cabinet [See Chapter 6].

Thus, the new Bill, the Public Inquiries Bill, is now clarifying the legal framework to leave no ambiguities, no erroneous interpretation. It re-establishes in the law, clearly the Constitutional principle, that the institution of a Commission of Inquiry, is the prerogative of the executive, “the Cabinet or of a Minister acting under the general
authority of the Cabinet”.

The Bill now, in the spirit of the Constitution, confers this power to the Prime Minister, who the Chief of Cabinet.

The present Bill leaves no ambiguity, no room, as or who has the power to nominate Commission of Inquiry. It spares us from the institutional crisis, which bear the imprint of the previous regime.

The previous regime did not dare draw the lessons of the previous dangerous Constitutional crisis between the previous Prime Minister and the former President of the Republic.

We dare! We are bringing the necessary amendments with the new Public Inquiries Bill!

Where they failed, we act!

Madame Speaker,

In addition to addressing the legal above imbroglio, the new Public Inquiries Bill will be bringing at least 4 major qualitative leaping forward.

1. The Bill opens the door for Public Access & Scrutiny to proceedings of the Board of Inquiry

Section 13 – Public access to proceedings

(1) Subject to section 14, the proceedings of an inquiry shall be held in public and the Chairperson shall take all reasonable steps as may be necessary to ensure that members of the public are able to –

(a) attend such proceedings;

(b) obtain or view a record of evidence given, and documents produced or provided, during such proceedings.

(a) (2) No recording or broadcast of proceedings of an inquiry may be ade, except –

(a) at the request of the Chairperson; or
(b) with the permission of the Chairperson and in accordance with such conditions as the Chairperson may impose.

2. The Bill set time bar for the completion of the Board of Inquiry.

Section 4. Terms of reference of Board of Inquiry

(1) (f) the date by which the inquiry report shall, subject to section 7(3), be submitted

Section 6. Duty to inform Assembly

(1) Where the Prime Minister proposes to set up a Board of Inquiry or has already set up a Board of Inquiry, he shall, as soon as is reasonably
practicable, make a statement to the Assembly setting out the terms of reference.

(2) A statement under subsection (1) shall state –

(a) who has been, or shall be, appointed as Chairperson;
(b) whether the Prime Minister has appointed, or proposes to appoint, any other member;
(c) the terms of reference, or the proposed terms of reference, of the Board of Inquiry; and
(d) the date by which the inquiry report shall be submitted.

(3) Where the terms of reference of a Board of Inquiry have been amended pursuant to section 4(2), the Prime Minister shall, as soon as is
reasonably practicable, make a statement to the Assembly setting out the amended terms of reference.
(4) Where –
(a) pursuant to section 8(5), the composition of a Board of Inquiry is altered or revoked; or
(b) pursuant to section 9(4), a member is replaced by another member, the Prime Minister shall make a statement to that effect to the Assembly.

3. The Bill renders it mandatory to make public the Report of the Board of Inquiry.

21. Laying of inquiry report before Assembly

The Prime Minister shall, not later than 30 days after receipt of the inquiry report under section 20, lay a copy of the inquiry report before the Assembly.

22. Publication of inquiry report in Gazette

A Board of Inquiry shall, not later than 30 days after submitting its inquiry report to the Prime Minister, cause the inquiry report to be published in the
Gazette.

4. The Bill includes a critical clause to protect the right of “Persons likely to be prejudicially affected”

18. Persons likely to be prejudicially affected to be heard

Where, at any stage of an inquiry –

(a) a Board of Inquiry is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give that
person a reasonable opportunity to being heard in the inquiry and to give evidence and produce any document in his defence; or

(b) a person is of the opinion that his reputation is likely to be prejudicially affected by the inquiry, the Board of Inquiry shall give
that person a reasonable opportunity to being heard in the inquiry and to give evidence and produce any document in his defence.

Madame Speaker,

In Conclusion, I will say that:

In the future, debates should held on the possibility to give Members of the National Assembly the power to instigate Commissions of Inquiry and their Terms of Reference, by way of motion or otherwise, as practice in various democracies.

In the mean time, Rezistans ek Alternativ is proud to be part of the political forces bringing in this new law of public interest.

Rezistans ek Alternativ, as part of the Alliance Changement, and as a party strongly committed to public transparency, truth and evidence based political decision, commend this Bill to the House.