Dharam Gokhool, Minister for Education, did not use his discretion of his own volition, nor was he compelled to use his discretion under the provision of any Act.What the people expected of him in the political arena may be at variance with what the law allows him.

With hindsight, people feel that, if things were done differently, the lives of the four people, including one child, who perished in the unpredictable floods of Wednesday 26^th March 2008 could have been avoided.Although the Meteorological Office did issue a communiqué in the early hours of the morning of the 26^th urging people to be prudent because of heavy rains, it did not issue an official warning for torrential rains which it could not forecast.Natural disasters are also referred to as Acts of God.

In the absence of such a warning, Mr Dharam Gokhool, the Minister for Education, has discretionary power to close schools and colleges.It is argued that, had he used his discretion, at least the life of the student Laura Paul could have been saved, although there may very well be something to be said about the efficiency of the rescue services, the maintenance of the drains and the hazards of Acts of God generally, even when predicted.To have used his discretionary power in this instance, Minister Gokhool would have had to consider reports other than the Met Report.Whether or not he did consider other reports is still to be confirmed.But since he has not used his discretion and relied on the Met Office Report, the Met Office being the only institution authorised to issue official climatological forecasts, is anyone else in any position to command that he should have ignored the meteorological report and used his discretion in the way others wanted him to, even having regard to the fact that rain had been battering the country for several days and worsening and schools were even flooded in the morning of the 26^th while he was attending an Annual General Meeting at the Mauritius Employers Federation ?What the people expected of him in the political arena may be at variance with what the law allows him.

Misuse of discretionary power
On the subject of misuse of discretion, Alexander de Smith said the following : « Today the courts have demonstrated that they can if they wish to review the legality of the exercise of virtually any discretionary power.That a power derives from the prerogative or is subject to the approval of Parliament will not deter judicial examination of the propriety of the decision to act and the action taken ».Hence, it appears that once a Minister elects or is compelled to use his discretionary power under an Act, the courts have judicial power to examine the reasons advanced in support of his exercise of discretion and &laq

uo; infer misuse of discretion in the absence of good reasons to support a decision ».(Note : An exception would be matters of National Security).In the case of Congreve v. Home Office [1976], Richard Congreve, a solicitor, purchased another colour television licence in anticipation of an increase in price to avoid paying the increased amount which he also subsequently refused to pay.The Home Secretary (a Minister) used his discretionary power and revoked his licence.The Court of Appeal explained that if the price of a commodity was going up at a certain date, there is nothing in law which can prevent people from buying more of it to save money even though they have plenty of that commodity at home.They declared the Minister's use of his discretion to revoke Mr Congreve's television licence unlawful.Moreover, the Judge pointed out that if the Minister had refused to give reasons, it would have been inferred that the reasons were inadequate.

The facts of Padfield v. Minister of Agriculture [1968] are that the Milk Marketing Board had fixed prices to be paid to producers in each of the eleven regions in England and Wales.One region wanted an increase in the price paid to them by the Board but did not have the support of the majority on the Board.The Act provided that, « If the Minister … so directs », a committee was to investigate and report back after a complaint is lodged with him under the Act.But the Minister refused to appoint such a committee after a complaint was lodged.The Minister claimed that he had free discretion to do so, and he was asked to give reasons for his refusal.The House of Lords found that the Minister had misused his discretionary power, had regard to irrelevant considerations and failed to promote the implied purposes of the Act.

But given that Mr Dharam Gokhool, Minister for Education, did not use his discretion to close schools on the 26^th at a time when the Met Office had not issued an official warning of torrential rains, can he still be accused of 'misusing' his discretion?As a layman in climatology, does the law expect him to override the Met Report?If the Home Office Minister had not revoked Mr Congreve's television licence, or if, in the Padfield's case, no complaint was lodged with the Minister of Agriculture who would not have been forced to use his discretion, the misuse of ministerial discretion would not have arisen.

Bearing in mind that none of the above two cases concerns any Act of God, Mr Gokhool did not use his discretion of his own volition, nor was he compelled to use his discretion under the provision of any Act.But since Mr Madan Dulloo, leader of the Mouvement Militant Socialiste Mauricien (MMSM), says that Minister Gokhool and PM Ramgoolam are liable for criminal negligence under Article 239 of the Penal Code, then he should enter this test case straight away for the benefit of the victims' families and the country as a whole.

M Rafic Soormally

London