Betamax, again

Editorial

It was announced last Friday, after the Cabinet meeting of the same day, that government had decided to appoint a Commission of Inquiry to inquire and report on, inter alia, ‘the circumstances in which the contract for transport of petroleum products to Mauritius (Contract of Affreightment) was awarded to Betamax Ltd and the circumstances which subsequently led to the termination of the said contract’. This comes following the final determination of this case by the Privy Council, which overturned the ruling of the Supreme Court, and confirmed the earlier ruling of the Singapore International Arbitration Tribunal which found in favour of Betamax. A sitting judge, Hon Mrs Carol Green-Jokhoo, Puisne Judge, will be the chairperson, and she will have as commissioners Dr Pushpawant Boodhun, former Permanent Secretary and Kodados Mosafeer, former Director, Procurement and Supply, as Commissioners.

Six billion rupees drawn from the public exchequer to pay for damages to Betamax for unjustified breach of contract as well as legal fees have gone down the drain in the process since the contract was rescinded by the Lepep government in 2015 without any perceivable benefit to the country, and one wonders what is sought to be achieved with this newly-appointed commission of inquiry.

Readers will recall that one of the first dossiers the Lepep government issuing from the general election of December 2014 took up after assuming power was the contract given out to Betamax by the STC under the preceding government in 2009. It tried at first to negotiate Betamax out of the country’s petroleum transportation contract in January 2015, on the ground that the contract would have been awarded unlawfully thanks to a colourable device consisting of amending public procurement laws and singling it out for privileged contract allocation.

To no effect, since, as advised to the government by the State Law Office previously, the contract had been made fully compliant with the changed legal dispositions. That this was actually the case was affirmed, as it were, by the Office of the Director of Public Prosecutions (ODPP), later in November 2016. The ODPP explaining its decision not to prosecute several persons including the former Prime Minister; former Minister of Public Infrastructure, Transport & Shipping; the director of Betamax and certain public officials for alleged offences of bribery of public official, forgery, conspiracy and related offences under the Prevention of Corruption Act and the Public Procurement Act, as asked for by the police in December 2015, found no evidence that the law, as it stood, had been breached.

However, the Lepep government was adamant that the law had been breached and colourable devices had been resorted to so as to allocate the contract to Betamax. Unwilling or not being able to negotiate the company out of the contract, it decided by end-January 2015 to rescind the Betamax contract. It found a presumably cheaper alternative for transporting our petroleum requirements. Whether this is true or not, we don’t know, as no credible independent assessment has taken place. The fact now is, as established earlier by the Singapore Arbitration Centre and thereafter confirmed by the Privy Council, that the Lepep government acted in breach of law by rescinding the contract, for which the State, that is the people, has had to shell out a colossal amount of Rs 6 bn for damages and legal fees.

The decision to appoint a commission of inquiry prior to the rash decision-taking of 2015, might have been understood. Now that the colossal damages have been inflicted on the population as confirmed by our court of last appeal, there is clearly the feeling that political motivations are at stake to try and spin a narrative that soothes the damage and resentment of the population.

The country is paying the price for a situation where power goes to the head of politicians who think that they can get off scot-free no matter what questionable decisions they take, how they twist existing laws and rules to suit their momentary conveniences and how they explain away controversial decisions. In France, past President Chirac, past PMs Laurent Fabius, Alain Juppé and Francois Fillon had to face the music for insalubrious acts during their tenure and past President Nicolas Sarkozy is currently in the dock for a variety of alleged offences. Even in the USA, at least a dozen collaborators of past President Donald Trump have been arraigned and charged with various misdemeanours, with Trump Organisation itself under scrutiny. Isn’t it about time to do away with the fig leaf of Cabinet collective responsibility and that politicians, just as high officials and advisors, be made answerable for acts that are against the public interest or the greater good of the nation, particularly when public funds are involved?

* Published in print edition on 27 July 2021