At the outset, let me express my deep appreciation of the continued determination of our courts to judge according to law and the facts of individual cases. As Professor Dicey would have said, no matter how great the accused is, how powerful he may be in the land, he must, in the ultimate, bend down before our judges.

However much we may sympathise with the convicted person in view of his unblemished character, he has allowed himself to be caught unawares. Even his senior advisers, who pushed the file to him for his approval, would not have dreamt that they were placing him in a dangerous position. According to financial regulations, the Minister of Finance is the only minister who can approve a re-allocation of funds. Unfortunately, as soon as he approved the proposed transaction by way of a minute on file, the issue of conflict of interest arose because of his degree of relationship with the ultimate beneficiary. As I see it, one advice I would have given to the Minister in such a perilous situation is to go on a concocted mission overseas at public expense and leave it to the President to appoint a replacement as advised by the PM. The replacement would then give his approval to senior administration.

The court is not interested in matters other than the case at hand, i.e. the charge brought by the prosecution against the accused. How the court’s decision might affect the accused is none of its concern although the court sometimes looks for the matters that may help it to mitigate sentence. The duty of the court is to enforce the law. The law, according to the Scandinavian and American Realists, is not what the common man makes of it, but what the court decides at the end of the day. At times, even the legislator is surprised at the interpretation of the law. In Mauritius now the court is allowed to consult the Travaux préparatoires, in particular the intervention of the sponsor of the legislation. Nonetheless, the court gives a purposive twist to its interpretation to make sure that it does not lead to manifest absurdity.

I now move on to other matters which have been raised here and there. First, the doctrine of the Collective Responsibility of Ministers. The Manual of Cabinet Procedure and books on Constitutional Law deal satisfactorily with the subject. In the UK the doctrine is a mere convention which is, however, strictly adhered to, unless the PM, as has happened on a couple of occasions, relaxes the rule. The doctrine simply means that once a decision is reached behind closed doors in Cabinet, each and every minister will stand by it and defend it in public, irrespective of his or her personal views. Every minister has ample opportunity in Cabinet to air his views.

In Mauritius which has a written Constitution, the doctrine in enshrined in Chapter VI - The Executive. However, whether the court will take cognizance of the doctrine and enforce it is far from clear. One view is that it applies to the members of the government but is not addressed to the court. The doctrine is relevant when one speaks of the unity of the government: we stand or fall together. Indeed, if the doctrine is not rigidly applied, how can a government stay in power, especially if it is a coalition government? In any case the doctrine is normally invoked by the PM when he invites the President to revoke a rebellious member of the Government.

A final note: Parliament should ensure that the law acts as a catalyst and does not stand in the way of development. The law should be clear so that the court is not compelled to engage in complex exercises of interpretation. The Public Procurement Act is a piece of legislation that needs urgent review in some material particulars. POCA, according to Senior Counsel Yousouf Mohamed, is another. One question that may be asked in the Medpoint Case is whether, under the Public Procurement Act, the appraisal of the bids should have landed at all on the desk of the Ministry of Health or whether the opening and appraisal of the bid should have been done higher up. Paul Bérenger has, at long last, made a sensible proposal: that there should be a Commission of Enquiry in the Medpoint case. So many aspects of the case are shrouded in mystery, to borrow a metaphorical term used by the learned magistrates of the IC that unless a full blown enquiry is held, doubts will subsist in the minds of ministers, public officers and members of the public.

Raju VYTHILINGEM

former Permanent Secretary and currently barrister-at-law