|
IN
THE SUPREME COURT OF MAURITIUS In the matter of:-
1.
Jayarama Valayden also called Rama Valayden,
a Barrister at Law and the
Leader of Mouvement Republicain of Hugnin Road, Stanley, Rose Hill 2.
Mouvement Republicain,
a political party represented by its Leader
Mr.Jayarama Valayden also called Rama Valayden Applicants
v/s 1.
Mr Kheshoe Parsad
Matadeen , Esq. 2.
Mr Rivaltz Quenette,
Esq 3.
Mr
Azad Jeetun, Esq Respondents
In the Presence of :-
The Attorney General and
Minister of Justice
Co-Respondent
Ex-Parte:-
1.
Jayarama Valayden
also called Rama Valayden, a Barrister at Law and
the Leader of Mouvement Republicain of
Hugnin Road, Stanley, Rose Hill
2.
Mouvement Republicain, a
political party represented by its Leader
Mr.Jayarama Valayden also called Rama Valayden Applicants
STATEMENT
RELATING TO AN APPLICATION FOR
AN ORDER OF CERTIORARI AND A DECLARATION. NAME AND
DESCRIPTION OF APPLICANTS: 1.
Jayarama Valayden,
also called Rama Valayden Barrister at Law and the Leader of
Mouvement Republicain, of Hugnin Road, Stanley, Rose Hill. 2.
Mouvement Republicain, a
political party represented by its leader Jayarama Valayden also
called Rama Valayden. RELIEF SOUGHT
(a)
Order
of Certiorari :
For the Co-Respondent to bring up before the Supreme Court of Mauritius
all the proceedings and
records of the Commission of Inquiry
appointed by the President of Republic on the 2nd of
March 1999, Chaired by the Respondent No.1 with Respondents Nos. 2 and 3
as members and this for the
purpose of quashing and setting aside the findings of the said
Commission of Inquiry quoad the
Applicants . (b)
A Declaration from
the Supreme Court of
Mauritius declaring null
and void the findings of the said Commission
of Inquiry regarding the Applicants’ involvement in the
February 1999 riots, one of
the subject matters of the Commission of
Inquiry . (c)
Such other ORDER or ORDERS
as the above court may deem fit and proper in the circumstances of
the case GROUNDS
The
grounds upon which the Applicants reply are set out in the first
Affidavit affirmed by the Applicant No.1 in his own name and on behalf
of Applicant No.2 Under all legal
Reservations
Dated
at Port Louis this day of December 2000. S.M.ETWAROO
Of 202, Chancery House,
Lislet Geoffroy Street, Port Louis
Applicants’ Attorney
IN THE SUPREME COURT OF
MAURITIUS
In the
matter of:- 1. Jayarama
Valayden also called Rama
Valayden, a Barrister at Law and
the Leader of Mouvement Republicain of Hugnin Road,
Stanley,Rose Hill 2.
Mouvement Republicain,
a political party represented by its Leader Mr.Jayarama
Valayden also called Rama Valayden
Applicants v/s 1. Mr Kheshoe Parsad Matadeen , Esq. 2.
Mr Rivaltz Quenette, Esq 3. Mr
Azad Jeetun, Esq
Respondents In
the Presence of :-
The
Attorney General and Minister of Justice
Co-respondent Ex-Parte:-
1.Jayarama
Valayden also called Rama
Valayden, a Barrister at Law and
the Leader of Mouvement Republicain of
Hugnin road, Stanley, Rose Hill 2.Mouvement
Republicain, a political party represented by its Leader Mr.Jayarama
Valayden Applicants
I, Jayarama
Valayden, also called Rama Valayden a Barrister at Law and the
Leader of Mouvement Republicain, of Hugnin Road, Stanley, Rose Hill, and
holder of Identity Card bearing No.V 1511612817214 MAKE
SOLEMN AFFIRMATION AS HINDOO
AND SAY THAT 1. I am
the Applicant No.1 in the above matter and have been authorised by
Applicant No.2 to affirm this affidavit on its behalf. 2. I am a
citizen of the Republic of Mauritius,
a Barrister at Law and the leader of a Political Party called “The
Mouvement Republicain “hereinafter referred to as the MR, Applicant
No.2. 3. On 16th
of February 1999, Applicant
No 2 after having received the express approval of the relevant
authorities held a meeting at Edward VII street, Rose Hill in order to
speak about the
depenalisation of Cannabis Sativa, popularly known as gandia . 4.A well
known singer called
Joseph Reginald Topize also called Kaya performed during the meeting
aforesaid. 5.The said
meeting was went on peacefully
. 6. On
18th of February, 1999 l
went for Rodrigues in order to attend the
District Court of
Rodrigues as Counsel . 7.In the
meantime on 18th of February 1999,the said Joseph Reginald Topize also
called Kaya was arrested by
the Police on a charge
of smoking Cannabis Sativa on
16.2.1999 at Edward VII street, Rose Hill during the said meeting. 8.The said
Joseph Reginald Topize also called Kaya died during his detention
by the Police at a high security prison commonly known as “ Alcatraz”
on 21st of February 1999. 9.After
the death of the said Joseph Reginald Topize also called
Kaya, there was a strong feeling of resentment amongst
a wide section of the Mauritian population against the Police
force resulting in spontaneous
outbursts of violence. 10. On
Thursday the 2nd of March 1999 the President of the Republic appointed a
Commission of Inquiry to inquire:- (a) into
the riots and disturbances that occurred in different
areas in Mauritius after the death of Joseph Reginald Topize ,also known as Kaya,
on Sunday the 21st
February, 1999; (b) into
the circumstances of and
the events leading to the
said riots and disturbances including the extent to which those
responsible for the said riots
and disburtances were acting in an organised and concerted manner ; (c) into
the impact of such riots and disturbances on the national economy; (d) into
any other matter incidental and relevant to the matters set out above, and
to report thereon and make appropriate recommendations . 11. The
Respondent No.1 was appointed Chairman of the said Commission and
Respondents Nos.2 and 3 as its members. 12. From
the terms of reference of the said Commission of Inquiry
it was abundantly clear that I was concerned directly in the
matter under enquiry inasmuch as :- (a) I was
the person ,who as Leader of the MR
was responsible for the holding of the meeting of 16th of
February, 1999 aforesaid ,which the Respondents, on numerous occasions
,pejoratively called the
“ GANDIA MEETING” ; (b) the
late Joseph Reginald Topize
also known as Kaya was arrested following
his participation in the said meeting
on a charge of having smoked gandia
then and there; (c) the
said Kaya died during his detention aforesaid ; (d)
I caused Counsel to appear for him
and to represent him during the police enquiry following his
arrest; (e) after
the death of the said Kaya his corpse was brought to the headquarters of
Applicant No 2 at Rose Hill ; (f) I
caused Dr.Ramesh Modun, a private medical practitioner, to come and
examine the said corpse ; (g) I did
the needful with the relevant authorities to have the body of late
Joseph Reginald Topize also known as Kaya to be kept at the mortuary of
the Sir Seewoosagur Ramgoolam National Hospital, Pamplemousses; (h) I
caused a foreign specialist in forensic medicine, namely Dr. Jean Paul
Ramstein ,from Reunion Island to come
to Mauritius in order to make a counter autopsy of the corpse
aforesaid with the approval
of all the relevant authorities; (i) I
organised ,with the approval of all relevant authorities ,the procession
of the said corpse from Sir Seewoosagur Ramgoolam National Hospital to
Roche Bois via Beaux Songes, the latter place being the place of abode
of the late Joseph Reginald Topize also called Kaya. 13.Following
the appointment of the Respondents ,the latter using the Supreme
Court of Mauritius as their lieu of work
and meeting ,held the hearings of the said Commission from 26th
of April 1999 up to
the 30th of March 2000. 14.
The findings of the said
Commission of inquiry are contained in a report
called “ Report on
THE RIOTS OF FEBRUARY 1999” and which was made public on or about the 24th
of October 2000. A copy of the said report is herewith annexed to
form part of this application. 15. (a)The
Respondents aforesaid were paid the sum of Rs 2 ,000.000. as
consideration for the holding of the said Inquiry and for the remittance
of the report to the President of
the Republic of Mauritius . (b) The
respondents were paid as follows from public funds : Respondent
No 1 Rs
1,000,000 Respondent
No 2 Rs 500,000 Respondent
No.3 Rs 500,000 16.
Subsequently the said report was remitted by the President of the
Republic of Mauritius to
the Prime Minister of the
Republic of Mauritius. 17.
The Co-respondent is the person who in law is to be sued and who
represents the Government of the Republic of
Mauritius in all litigations against it .
18. (a)I
and other members of Applicant No. 2 volunteered to depone before the
said Commission and retained
the services of Counsel Marie Jacques Laval Panglose for this particular
purpose;
(b)the Respondents were made aware of this fact officially on the
very first day I appeared before the Commission.
19. I
deponed not only in my own name as a Citizen of Mauritius but also
as Leader of the MR, my
party. 20. At
page 4 in paragraph 1 of
the said report the
Respondents stated and held the following : “Panglose
,Counsel for Mr. R.Valayden and a few witnesses who had volunteered to
give evidence before the Commission
enquired as to whether he was entitled to stay throughout the
proceedings and interrogate the witnesses as they come to depone before
the Commission in accordance with instructions he may receive. The
Commission held the view that the presence of Counsel, or any other
person for that matter all through the proceedings, was not proper
but indicated that, should any witness incriminate any particular
person , that person would be given the opportunity to interrogate the
witness .In the result it
was not necessary to subject to further interrogation witnesses who had
expressed an adverse opinion on either the Police or the Government or a
particular group .” 21.
At the same page in paragraph 3, the
Respondents further held and stated the following : “A
few {witnesses } found in the Commission
a forum for gratituous remarks and attacks
on others. There was
a number of similarities both in form
and in content (sic), in the evidence of different categories of
witnesses that was indicative of
prior concertation and that some witnesses had learnt their parts by
rote and were regurgitating them
parrot - fashion before the Commission .This applied not only to some
members of the “ Forces Vives”and some Police officers but equally to some members
of the Mouvement Republicain (MR) who volunteered to give evidence”. 22. I aver
that when the Respondents refused
to allow Applicants’ counsel to be present throughout the course of
the Inquiry aforesaid,
as they themselves held at
page 4 in paragraph 1 of the said report as
quoted above , they acted
in utter bad faith and
in complete disregard of the law namely
section 14 of the
Commission of Inquiry Act which
provides : “S.14.Representations
by counsel :
Any person whose conduct is the subject
of inquiry under this Act, or who is in any way implicated or
concerned in the matter under inquiry, shall be entitled to be
represented by counsel at the whole of the inquiry, and
any other person who considers it desirable that he should be so
represented may, by leave of the Commission, be also represented by
counsel at the whole of the inquiry .” 23. I
further aver that the Respondents also gave a firm undertaking to the
effect that they would inform and allow
Applicants’ Counsel to cross examine any
party making any allegations against me and my party ,the MR , at
page 4 in paragraph 1 of
the said report : “……….should
any witness incriminate any particular person , that person would be
given the opportunity to interrogate the witness”. 24. I aver
that in fact and in truth the Respondents belied their promise. 25.
I therefore aver
that this is against the rules of natural justice more specifically the
rule against bias: “ audi alteram partem”. 26. I
further aver that this was a very serious breach of the law inasmuch as
the Respondents showed openly and blatantly a complete disregard of the
law and/or ignorance of same . 27. I aver
that the instances where the Respondents failed to allow my counsel ,
who was also counsel for the other members of the MR to cross examine
witnesses who had made allegations against me and
my party, the MR ,as duly promised above , are as follows inter
alia : (a) When
one Ally Lazer
who had stated the following , as quoted by the Respondents
themselves in the Report at page 53 in paragraph 4 : “
Rama Valayden had advocated
the use of violence
if need be against the
targets .” (b) At
page 56 in paragraphs 1 and
2 the Respondents held and stated the following
reporting the words of one
Mr Lindsay Morvan, a witness : “He
also condemned the attempts of Rama Valayden to highjack
the funeral of Berger Agathe …….” “………………
Valayden offered to provide a coffin for Agathe’s body provided that
the body was exposed at Roche Bois Stadium” “He also deplored that Kaya’s body should have been taken to the MR
centre and not handed over to the family on Sunday 21st of February,1999
after the autopsy .” (c) at
page 140 in paragraph 3 of the said report where, the Respondents,
reporting the words of Mr Paul Berenger,
stated the following : “
Thirdly , he explained ,the MR and its followers were allowed to take the law in their own
hands. He referred to occurences like the destruction of private
property at Maritim Hotel, the profile of the followers of the MR which
he described as drug traffickers and drug addicts and the general
perception that the MR and its followers were immune from police action
and that the rule of law was being flouted”. (d) at
page 140 in paragraph
5 of the said report where,
the Respondents , reporting the words of
Mr Paul Berenger, stated the following : “This was followed by
looting with a few MR followers leading
the way”
(e) at
page 62 in paragraph 1 of
the said report where Respondents stated the following words: “
The Commission disagree with Rama Valayden when he claims that he
did not see anybody smoking or distributing gandia . The Commission
accepts the evidence of the police that gandia was freely smoked and
distributed.” 28.I aver
that those allegations mentioned
in paragraph 27 above were false; and at subsequent hearings of
the said commission when I was ordered
to depone by the Respondents ,
the latter never even put the allegations to me so that I may defend
myself thus showing anew a
bias against me and the MR and
blatant disregard of the law and /or ignorance of same. 29.I
further aver that I had no opportunity to allow my Counsel to cross
examine the said Messrs.Ally Lazer,Lindsay Morvan ,Paul Berenger and the
police officers mentioned
above upon these
allegations made by them ,
thus showing anew the Respondents’
bias towards to me and
my party the MR and their blatant disregard of the law and /or ignorance
of same . 30.I also
aver that the Respondents were biased
against me and my party the MR abinitio
inasmuch as they called and termed the meeting duly authorised
by the Police and held on
the 16th of February 1999, throughout
their report as the “Gandia Meeting”, when, in fact, the
meeting aforesaid was one for the depenalisation of Cannabis Sativa
.e.g.: at pages 40 in paragraph 3, page 53 in paragraph 3, page
55 in paragraph 4, page 56
in paragraph 4, page 59 in paragraph 4, page 65 in paragraph 6 inter
alia . 31.I also
aver that the Respondents were biased
against me and my party the MR ab initio and throughout the
Commission of Enquiry inasmuch as they stated and held
when referring to my
testimony at pages 61 and
62 in paragraph 7 and 1 respectively of the report the following : (a) “The
Commission asked Valayden whether, having regard to his background of
politician and lawyer, it had not occurred to him that gandia would be
smoked at the meeting on 16th February 1999 . He answered that he had
held a press conference a few days earlier “pour conscientiser tout le
monde.” He claimed that the press conference was held to invite the
public not to smoke gandia at the meeting”. “The Commission disagrees
with this view. The Commission feels that if anything, the press
conference was an invitation to smoke gandia at the meeting. The MBC-TV
which broadcasted the press conference showed members of the MR
seated in the traditional way with the appropriate smoking instruments
in front of them. Moreover, Rama Valayden, who was on the podium did
invite those attending the meeting to “ fume petard” .The Commission
disagrees with Rama Valayden when he claims that he did not see anybody
smoking or distributing gandia.The Commission accepts the evidence of
the police that gandia was freely smoked and distributed.”
(b) At
page 63 in paragraph 5
when they held the following : “The
Commission wanted to know whether any member or follower of the MR had
been prosecuted in relation to any MR sponsored activity he replied that except for
a charge laid against him following the gandia meeting ,no action of any
sort has ever been taken against the party and its members and followers
in relation to activities sponsored by the MR ”. 32. The
averments in paragraph 31 above show
that the Respondents were acting in complete disregard of the law
and/or ignorance of same more
especially as they knew that I was and am being prosecuted before the
District Court of Rose Hill for
the following charge: Incitement to
disobedience or resistance to
law, to wit : smoking gandia( breach of section 284 of the Criminal
Code). 33. I aver
that by so doing the Respondents thus made findings on matters which are
sub judice and acted in
blatant contempt of Court.The said findings
are a deliberate attempt to influence the course of justice and
the eventual finding of the duly appointed Magistrate for this
particular issue involving my
own personal liberty and my career both professionally and politically
.Moreover they were acting against the presumption of innocence.
34. I
further aver that the
Respondents clearly showed
their bias against me (a) at
page 56 in paragraph 3 “He would like to believe that he is
inspired by Gandhian principles”
thus intoning the inuendo
that this attitude was a mere sham on my part
when in fact according to them I am
the exact contrary of the ideals
of Mahatma Gandhi . (b) at
page 60 in paragraph 3 “He
claimed that when he went to the
wake of Berger Agathe on Tuesday evening ,he had the impression
that “ everything had been left for (him) to organise to get things
arranged” and that the family was expecting him to help as he had done
in the case of Kaya. He
claimed that no decision had been taken as to whether the funeral
would be done according to the Rasta ritual or the catholic ritual.No
decision was taken until
the next morning although he did discuss about it with Berger Agathe’s
concubine who even asked
him to phone Father Fanchette to know whether he was going to come to
the house to say a prayer”. (c) at
page 61 in paragraph 2 “ He claimed that the MR is
the only party to publish its accounts,including the names of its
benefactors .He added that the rent for the MR centre was paid by
members who contributed according to their means” (d) at
page 61 in paragraph 4 “ He claimed that the MR does not have any overseas funding”. (e) at
page 61 in paragraph 7 “
he claimed that the press conference was held to invite the public not
to smoke gandia at the meeting”. (f)
at
page 52 in paragraph 4 “
Rama Valayden boasts
unrestricted access to the Prime Minister and
other Ministers .”
thus intoning the inuendo that the facts to which I testified as quoted
above were not capable of
being believed or were false or that I was a liar. 35. I
further aver that the
Respondents, at page 61 in paragraphs 6 and and at page 62 in paragraphs
1,2,3, and 4 “ inter alia”, when referring to me
simply wrote either “ Rama Valayden” or
“ Valayden” in stark contrast
from the way in which they referred to, for example Police
Officers, at pages 91 and 92 where they referred to “Mr.
P. Gooljar”, “Mr Gooljar” , “Mr
Shattock” , and at page 139
when referring to the then Leader of the opposition as
“ Mr Berenger” thus
showing their open contempt and
bias against me not only as
a person but also as Barrister at law,a Leader of a political party and
as a witness . 36.(a) I
further aver that the Respondents had already shown their open disgust
and bias towards me and
applicant No 2 at the very beginning of their report when commenting
upon the meeting held on the 16th of February, 1999 and more
especially at page 42 in paragraph 1 where they referred to us as
follows: “it is to be noted that the various
speeches were deficient not only in substance but also in form as they
were couched in a language befitting
of rabble- rouses but which would certainly shock the average Mauritian
.”
(b) I further aver
that the Respondents were consistent in that approach towards me and
applicant No. 2 as is
evidenced by their findings at page 51 in paragraph 4 of the report
under the heading : The policies “The party has since its inception
espoused a populist
approach and has advocated
policies which exploit the basic instincts and demands of
anti-social and unruly characters like the legalisation of the smoking of gandia, the
legalisation of sodomy and
the lowering of the age of for sexual intercourse. On the latter two
policies, the party has had to back pedal .” (c) I aver
that these comments were unfounded and unwarranted 37.I
further aver that the Respondents made
erroneous ,false and unwarranted findings on me and on the MR ,my
party, inter alia ,as follows: (a) at
page 10 in paragraph 2 when they wrote the
following; “ At
7.45 p.m the police accompanied by
a police mortuary
van proceeded to the MR centre to take possession of the dead body; but
the crowd became hostile and attached and damaged
both police vehicles .The Police had to withdraw. Mr.Rama
Valayden and other members of the MR
were present”. (b) at
page 10 in paragraph 3 when
they wrote the following; “
A few minutes later Messrs R.Valayden and S.Dowarkasing called at Rose
Hill police station followed
by a group of about 200 persons. Mr.Valayden informed the police that he
himself would convey the dead body to Port Louis
and that they should not call
at the MR centre. Members of the crowd threw stones at the
station building and damage several panes of glass and a police
vehicle . They also shouted
insulting words at the police.The police identified several members of
the MR amongst those who
attacked the police station. ” (c) at
pages 11 from paragraph 2 to
paragraph 2 on page 12 when they wrote the following;
“ In the meantime the
situation in Beau Bassin ,Roche Bois, Barkly and Abercrombie became
tense. At about 10.00 p.m.
a crowd of about 150 persons pelted Beau Bassin police station
with stones. The vehicles that were in the parking area were
equally damaged. Shots were fired in the direction of the mob which then
dispersed . In Roche Bois small gatherings
were reported in the vicinity of the police station
as from 8. 00 p.m. At about 9.00 p.m. the crowd which had grown
to over 1,000 persons attacked
the station and attempted to
set fire to it . Many of the rioters ,who included both males and
females were wearing masks and using insulting anti police slogans. A
motorcycle and a private van belonging to police officers were set on
fire. The police fired two shots but they were overpowered and had to
leave the station in a
police vehicle . They took along with them their arms and ammunition and
proceeded to Fanfaron police station . Reinforcements from the SSU and
the Special Mobile Force ( SMF) were subsequently despatched on the
spot. At about 10.00 p.m. several crowds had
assembled in various parts of Roche Bois . They obstructed the motor way
and threw stones at passing vehicles. A private car and two motorcycles
were also damaged by fire. Senior police officers who were proceeding
from Abercrombie Police Headquarters to
Roche Bois police station were attacked by a mob. The riorters hurled
stones at their vehicle and the police had to retire. Mr. Valayden , who
was on the spot, addressed the crowd. The latter became even more
hostile and attacked the police by thowing stones and cocktail molotovs
and by erecting road blocks. SP Andre was hit at the head with a stone.
The police retaliated by using tear gas, hand grenades and shot guns
.The mob dispersed but reassemble some distance away . Several
groups assembled on the
northern motorway up till midnight
and set road blocks from Cocoterie roundabout to Roche Bois
roundabout . In fact the stretch of road from Terre Rouge
roundabout to Quay D was closed to vehicular traffic . Even in the early
hours of the morning there were several persons assembled in the
vicinity of Roche Bois Roundabout. At about 2.00 a.m. a group of rioters
broke open the gates of the Quarantine station and set free about 50
heads of cattle.These were left to roam along the motorway and the
streets of the capital”. Moreoever , another hostile crow armed with sabres
and sticks attacked Abercrombie police station and shouted
obscene anti -police
slogans.The rioters assaulted the station orderly and only dispersed on
the arrival of the SSU”. 38. I aver
that the above mentioned excerpts
are distorted ,
coloured and are irrational representations of what
in fact happened at all material times. I further
aver that it is only when the record is brought up and a faithful
rendering of the proceedings put before this Honourable Court that a
true and faithful finding of what really happened will be possible. 39.
I further aver that the attitude of the Respondents
towards me and my party
the MR throughout the holding of their inquiry was unreasonable,
as for example in the following instances ,inter alia: under the heading
: “Should the meeting have been
authorised” at page 45 and at page 46 in paragraphs 1 to 4
where the Respondents wrote: “ The Commission is
of the view, however, that in the particular circumstances of the
MR meeting, the police should not have authorised the meeting, and this
for a number of reasons . First, whilst the Commission does not in the
least advocate the imposition of any restriction on the freedom of
opinion, however controvential it may be, as guaranteed by our
Countitution, the Commission feels that such proposition is more
eminently suitable for civilised and organised debates where reason
would prevail of the passionrather than being thrown to an excited mob
by orators tampted to indulge in demagogy. As it turned out, none of the
orators really addressed the issue and came up with clear proposals or
well defined strategies which would
go beyond the meeting. Secondly, as no objection was raised by the
National Intelligence Unit, the Commision wonders whether there has been
the proper intelligence input, espcially in terms of profilin. As will
be apparent in due course, the MR had previously been involved in a
number of gatherings where the law had been openly breached. It is to be wondered whether sufficient thought was given to the MR as an
organisation with a history of protest that have had spill-overs. Thirdly, nobody in his right mind would have
expected that meeting to be attended by choir-boys, the more so as it is
an accepted fact that gandia is smoked at a number of concerts worlwide.
As it turned out, a number of people did smoke gandia openly on that
day. Both Mr. A.Feillafe and Mr P.Gooljar had to
concede with hindsight that the meeting should never have been
authorised”. 40.I am
advised and verily believe
that it is out of common sense and reason
to hold ,that a meeting ,that was lawfully organised and held
,should never have been so held , more especially as there were protests
against the holding of the meeting and they were overruled
by the authorities . Moreover, at the time when the proceedings
will be brought before this Honourable Court, the evidence and
proceedings and record will show that, at no time during the aforesaid
meeting ,was there any excited mob as the Respondents held that the
crowd was . 41.I am
also advised, verily believe and know that the findings
of the Respondents that the MR, my party, had previously been involved in a number of gatherings where the law had
been openly breached is a perverse finding as no member of the MR had
ever been prosecuted for any gathering
where the law was breached . It was also out of common sense and
reason to talk about hindsight as this is a factor which is never taken
into consideration by any
sensible and reasonable man , upon reaching a finding . 42.I
further aver that the Respondents acted ultra vires the terms of
reference when they themselves held at page 3 in paragraph 3 of the said
report the following : “
Secondly, such a procedure was bound to let
in a fair amount of hearsay evidence . The Commission
considered that it was not proper to close the door to such testimony
although in the end it did not act on it. It was thought that some
witnesses who had lived through a traumatic experience should be given
an opportunity to give vent to their feelings. However, where the
witness deponing did not himself know of the facts but had heard of them
from others, the Commission
sought to obtain first hand evidence from other persons
or conducted his own enquiry
on the leads provided by the hearsay evidence ” 43.I aver
that the preceding
paragraph shows that the Respondents, of their own admission let in a
fair amount of hearsay evidence which is contrary to section 13 of the
Commission of Inquiry Act which
provides : “S.13 Law of evidence to
apply :Any enactment relating to
witnesses and evidence shall ,subject to this act be applicable to all
witnesses appearing ,and to all evidence
given,before the Commission.” 44.I aver
that the rider of the Respondents, that they did not act on the hearsay
evidence ,is of no avail; as Justice
not only, has not been done but has not been seen to be done
.This is so ,more especially in
view of the fact that the Respondents themselves stated the following : “ The
Commission sought to obtain
first hand evidence from other persons or conducted his own enquiry on
the leads provided by the hearsay evidence .” 45.I
am advised and verily believe that the Respondents thus acted in
blatant disregard of the law and/or
ignorance of same and this
against my interests and the interests of justice ; and in any case were
acting ultra vires. 46.I am
advised and verily believe that for the reasons set forth above the
findings of the Commission of Inquiry
concerning me and the Applicant No.2
are: (a) biased
against us , (b)
against the rules of natural justice, namely
the rule termed: Audi
Alteram Partem (c)
contrary to sections 13 and 14 of the Commission of Inquiry Act
and as such ,therefore ,illegal.
(d)
perverse, unreasonable, coloured ,irrational (e)
a failure because they took
into account irrelevant considerations
instead of taking note of relevant factors (f)an
affront to common sense and reason; (g) Ultra
vires, (h)
and brought the administration of Justice into complete
disrepute. 47.In the
premises it is urgent and necessary that LEAVE be granted to me and
Applicant No.2 to apply by
way of JUDICIAL REVIEW For: (a) Order
of Certiorari : For the Co-respondent to bring up before the Supreme
Court all the proceedings
and records of the Commission of Inquiry
appointed by the President of Republic on the 2nd of March 1999,
Chaired by the Respondent No.1 with Respondents No. 2 and 3 as Members
and this for the purpose of quashing and setting aside the
findings of the said Commission of Inquiry quoad
the Applicants . (b) A Declaration
from the Supreme Court of
Mauritius declaring null and void the findings of the said Commission
of Inquiry regarding the Applicants’ involvement in the
February 1999 riots, subject matter of the said Inquiry
(c) Such
other ORDER or ORDERS
as the above Court may deem fit and proper in the circumstances of
the case. 48.I
therefore pray accordingly . Solemnly
Affirmed by the abovenamed) Deponent,
at Chambers, Supreme Court) House,
Port Louis
)
This
day of December 2000
) Drawn up
by me Before
me S.M.ETWAROO
COURT OFFICER Attorney-At-Law Supreme
Court This is to
certify that this affidavit forms part of an application to be entered
before the Supreme Court S.M.ETWAROO Attorney-At-Law
|
"Comment is free but facts are sacred" - C. P. Scott