Mauritian lawyer, named in controversial drug trafficking report, wins case to expunge findings

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There was always going to be fall-out from the report into drug trafficking in Mauritius by retired high court judge, Lam Shang Leen and other commissioners. A number of prominent individuals were named by the 2018 report as implicated in some way, among them the minister of gender equality and the deputy speaker in the national assembly, and they both resigned from their respective offices in its wake, though they kept their parliamentary seats.

But it also fingered Port Louis lawyer, Rauof Gulbul, prime minister Pravin Jugnauth’s personal lawyer. Gulbul took the matter to court, asking for judicial review of parts of the report and its findings. In particular, he wanted the report’s findings concerning him to be declared ‘in breach of fairness, unreasonable, perverse, illegal and ultra vires’.

Among other ‘alleged findings’ by the commission are that he took drug money as his fees, that he received significant sums of money from drug traffickers to finance his campaign for the 2014 general election, and that he used his position as chairperson of the gambling regulatory authority to allow money laundering by accomplices of drug traffickers in casinos, gaming houses and in horse racing.

‘Black phone’

He also challenged certain ‘findings’ related to his family: that considering his own income and that of his wife, the properties they own cannot be explained or justified, and that he used his wife’s phone during his electoral campaign in the 2014 elections.

Another ‘finding’ relating to phone usage is that he used a ‘black phone’ to communicate with clients detained in prison.

The commissioners who heard from witnesses and drew up the report impugned by Gulbul said they were fully mandated by their terms of reference to examine the matters dealt with in the report.

Remarks

In its decision, delivered earlier this month, the supreme court noted, however, that in opposing Gulbul’s application, the commissioners claimed that ‘the facts qualified as findings are not findings as such inasmuch as they are only remarks, comments, observations or recommendations backed by evidence gathered in the course of the inquiry and [are] … fully justified. This being so, the remarks, comments, observations and recommendations made are not amenable to judicial review.’

In its report, the commission said it was puzzled that its investigating team couldn’t find any calls between Gulbul and his clients in prison. Since he did not visit his clients in prison, the commission wondered how he was able to obtain instructions from them in order to defend them in court.

One of his juniors told the commission that Gulbul used a ‘black phone’ and that this would be why calls between him and his clients could not be traced. His nephew and his official driver during the election campaign both confirmed to the commission that Gulbul used several phones.

Implicate

Former clients, charged with drug trafficking, claimed during commission hearings that Gulbul had been involved in corrupt activities. One told the commission that Gulbul had tried to persuade him to lie in court and not implicate another of Gulbul’s clients, in exchange for payment.

Among the witnesses at the commission were two fellow lawyers who testified against Gulbul. They said that Gulbul had asked to meet them before they testified at the commission, and told them that they should be ‘economical with the truth or lie before the commission.’

Trust

Perhaps the most controversial part of the report as it related to Gulbul is the section headed, ‘Et tu Brute!’ Under this heading, the commissioners said that the ‘name and position’ of Gulbul’s spouse had been referred to during the hearings, and it appeared that in the minds of his colleagues, ‘they were more inclined to put their trust in and follow his guidance as he benefitted from the reputation of his spouse, a sitting judge of the supreme court. (Gulbul’s wife, a judge, has just been appointed as Chief Justice of Mauritius.) The mobile phone of his wife has also been used during the electoral campaign. But before the commission they had a different unflattering opinion of him, even calling him a liar.’

According to the report, Gulbul denied the ‘information’ against him at the commission was true, and suggested there was a conspiracy against him.

The commission considered these were ‘matters of concern’, however, and that if these facts were proven correct, Gulbul might have committed a number of offences. For this reason, the commission recommended an in-depth inquiry and audit trail of Gulbul’s affairs.

One-sided

Assessing the content of the report, the supreme court noted that though the commission initially said it would give certain ‘comments’ in relation to Gulbul, it went on to make ‘findings’.

The problem was, though, that there was no indication that Gulbul was given the opportunity to challenge the allegations against him by way of cross-examination or to give evidence himself in rebuttal, and if he had been given this opportunity, the commissioners did not deal with his responses fairly.

Witnesses at the commission recited allegations of attempts to interfere with witnesses in drug related cases, but this amounted to a ‘one-sided account of the story they told’ because their claims were not tested by cross-examination, and were simply accepted by the commission ‘as being worthy of consideration’, according to the court.

Abused

Much of the report’s material on Gulbul amounted to a retelling of allegations received in evidence, considered serious enough for the commission to highlight in its report. But most of this was ‘the recital of a one-sided story’ and nothing was said about Gulbul’s stance in response to the claims, nor was there any indication that the allegations against him were brought to his attention so that he could defend himself.

This theme – that Gulbul had not been given the opportunity to make any meaningful response to the allegations against him or else that the commissioners had not given his responses proper consideration – continues through the court’s judgment. The two supreme court judges also took exception to the report’s using the headline, Et tu Brute, when dealing with allegations that Gulbul had used his wife’s phone and that he ‘improperly abused his position as the husband of a sitting judge’. The headline was unfair to Gulbul and his wife, they said.

The court said the commissioners seemed to have one-sided view of the allegations they heard and included very little of what Gulbul might have said in response to the claims, meaning either that they did not give due consideration to his explanations or else that he was not given the opportunity to respond.

Precaution

The judges also said that the commission was entitled to recommend an in-depth inquiry if that were warranted. But then they should have ‘recited with fairness and take the required precaution [with] the evidence which prompted them to make such a recommendation.’

‘However, they failed to do so as they presented the evidence before recommending an in-depth inquiry in a manner which is indicative of a preferred version … considered without due observance of the law of evidence and the rules of natural justice.’

In its 40-page decision, the court concluded that all the report’s findings against Gulbul were flawed ‘for having been reached without due observance of the law of evidence and in breach of the rules of natural justice’. The findings were thus reviewable, and the application should succeed.

The end result was that the five pages of the report devoted to findings against Gulbul were declared in breach of natural justice and fairness, and the court directed that the findings were to be expunged from the report.

  • ‘A matter of justice’, Legalbrief, 28 November 2021