Hard decisions, good resolves

The Director of Public Prosecutions (DPP) Me. Satyajit Boolell, Senior Counsel, has put an end to the suspense on Wednesday afternoon. He will appeal against the judgment delivered on 25th May last, in the case of ICAC v/s Pravind Kumar Jugnauth.  By applying to the Supreme Court for conditional leave to appeal to the Judicial Committee of the Privy Council against the judgment delivered on 25th May, 2016 by the Hon. Chief Justice Keshoe Parsad Matadeen and Hon. Judge Ashraf Caunhye in the case of ICAC against Mr. Pravind Kumar Jugnauth, the Director of Public Prosecutions (DPP) has signaled his willingness to grapple with a question that has been raised ever since the said judgment was delivered. That of the interpretation of “conflict of interest”, as per article 13(2) of the Prevention of Corruption Act (PoCA).

NEITHER A POLITICAL MOVE NOR A REVENGEFUL ACTION

At the very outset, this decision of the DPP should neither be viewed as a political move nor as some sort of revengeful action. On the contrary, it should be seen as a responsible resolve to find a final legal interpretation of conflict of interest as per article 13(2) of the Prevention of Corruption Act (PoCA). As a matter of fact, the DPP insists on this aspect in a press communiqué released on Wednesday. The DPP further explains that the judgment delivered by the Supreme Court on 25th May, 2016 has quashed an earlier judgment that was delivered by Magistrates Niroshini Ramsoondar, Acting V President of the Intermediate Court and M.I. Azam Neerooa, Magistrate, Intermediate Court on June 30,2015.

“ At the very outset, this decision of the DPP should neither be viewed as a political move nor as some sort of revengeful action. On the contrary, it should be seen as a responsible resolve to find a final legal interpretation of conflict of interest as per article 13(2) of the Prevention of Corruption Act (PoCA). As a matter of fact, the DPP insists on this aspect in a press communiqué released on Wednesday."

“The Supreme Court’s judgment, which overturned the decision of the Intermediate Court, gives rise to important questions as regards the determination of guilt under Section 13 (2) of the PoCA, .inter alia : the requisite degree of knowledge and criminal intent of a public official to establish an offence of Conflict of Interest , and whether good faith can be invoked as a defence; the meaning of the term “personal interest” and whether it excludes the shareholding of relative of a public official in a company; (c) the nature of participation in proceedings prohibited under that provision and whether a public official is precluded from taking any step in the execution of a contract which has been awarded by a public body to a company in which a relative of that public official has shares”, underlines the DPP. The DPP seems to challenge the definition of personal interest given by the Chief Justice Matadeen and Judge Caunhye. “Whether, as the Supreme Court held, for the purpose of establishing the existence of a conflict of interests pursuant to section 13 (2) of the Prevention of Corruption Act, the expression “personal interest” in section 13 (2) is to be construed, in its statutory context, as preventing the State from relying on the shareholding of the relative of a public official in a company?”. “Although a relative may have an interest as shareholder, he would have no “personal” interest in a decision of Government to allocate funds to a company which is, in law , a different entity”, had written Chief Justice Matadeen and Judge Caunhye in their judgment. In fact, the appeal of the DPP rests on four major points: the question of conflict of interest; the issue of good faith (having acted under honest and reasonable belief); shareholding and personal interest and award of a contract. It must be noted that in the press communiqué released on Wednesday, the DPP also maintains that “(…) it is after careful review, and thorough internal consultations, that it is essential in the public interest and for the future development of law in this vital area that these fundamental legal issues, on which the two courts have disagreed, should be referred to the Judicial Committee of the Privy Council (JCPC) for its ultimate decision.” The DPP adds that his application for conditional leave to appeal to the JCPC is “of great general public importance to the future administration of justice.”

ANY POLITICAL REPERCUSSIONS AHEAD?

Me. Raouf Gulbul, one of the lawyers of Mr. Pravind Jugnauth, has clearly explained, in various statements to the media, that his client has been found not guilty by the Supreme Court and that “constitutionally and legally, nothing can prevent him from keeping his post as Minister of Finance.” Other legal experts have clarified another important legal fact; that the DPP cannot urge for the suspension of the Supreme Court judgment, because it is in favour of Mr. Pravind Jugnauth. Me. Shakeel Mohamed, barrister and leader of the Labour parliamentary group makes an interesting comment in a statement to l’Express on Thursday 9 June, 2016. “This piece of news (that of the DPP deciding to make an appeal) should not be politicized. The procedures are like this. (…)It’s news because Pravind Jugnauth is the Minister of Finance. We should allow the institutions to do their job. What is sad is that to give confidence to the population, we need to have stability. There is too much of indecision. This does not help the economy. This is our third Minister of Finance in a period of eighteen months. With this appeal, uncertainty is created and this is not good news”. Indeed, as rightly underlined in an article penned by Mr. Kris M Valaydon and published in L’Express (8 June,2016), the author recalls that the period of uncertainty had started during the time that Mr. Vishnu Lutchmeenaraidoo was Minister of Finance. To support this argument, the author reminds us that at that time several important files like that of the Heritage City and that of the Double Taxation Avoidance Agreement (DTAA) were transferred to other ministries (that of Financial Services, Good Governance and Institutional Reforms). Mr. Valaydon also makes the chronology of things: Mr. Lutchmeenaraidoo falling ill and being absent and his subsequent replacement by a part-time Minister of Finance (Sir Anerood Jugnauth) and finally the appointment of Mr. Pravind Jugnauth as Minister of Finance. Ever since the Lepep Alliance government was installed, there has been at least three official documents to define its economic strategy; the Government Programme (Presidential Address), the Budget 2015/2016 presented by Mr Lutchmeenaraidoo and VISION 2030 presented by Sir Anerood Jugnauth. There has been an overdose of consultations with the private sector, the latest ones being held by the new Minister of Finance. What is required urgently is bold action, otherwise we are heading towards a major socio-economic crisis.

BUILDING ON POSITIVE ASPECTS

The government should build on the positive aspects that make the reputation of Mauritius. For instance, according to Global Peace Index 2016, there are now only ten countries in the world that are actually free from conflict. According to the Institute for Economics and Peace, a think tank which has produced the index for the past ten years, only Botswana, Chile, Costa Rica, Japan, Mauritius, Panama, Qatar, Switzerland, Uruguay and Vietnam are free from conflicts. Also, our diplomatic missions abroad should be put to task, in line with the declared intention of the new Minister of Foreign Affairs, Regional Integration and International Trade, Mr. Vishnu Lutchmeenaraidoo to promote “economic diplomacy”. Call it political vibrancy or whatever, the clash between Mr. Showkutally Soodhun and Mr. Reza Uteem, the sudden interest of the MSM in MP Mr.Jean-Claude Barbier, the revelations of Mr. Joe Lesjongard and Mr. Shakeel Mohamed on the new “koze kozer” (informal talks) between Mr. Xavier-Luc Duval and the former Prime Minister and Leader of the Labour Party Dr Navin Ramgoolam and Mr. Paul Bérenger’s accusations leveled against PPS Mr. Thierry Henri all form part of our political folklore.