‘ICAC should not be seen sitting on this case for months or years’

The Molnupiravir Controversy

Qs & As

‘What matters is that the ICAC conducts its investigation in an objective, impartial and timely manner; the rules of fairness and objectivity must prevail over politics’

By LEX

After the shocking revelations of “emergency” purchases during 2020, one might have expected far greater vigilance from the Health Ministry and the High-Level Committee meeting daily to oversee all aspects of pandemic management since then. In the current scandal, civil servants are already facing the music (early retirement, suspension or transfers) while ICAC has been tasked to probe and establish responsibilities for corrupt actions and any associated money-laundering. How far were those administrative officers acting of their own volition without referring to their political masters will be a real test for that agency to decipher. Lex delves on that nexus of shared responsibilities between senior administrators and their Ministers.

* In the context of the emergency procurements of the Ministry of Health, we are now saddled with yet another highly controversial purchase: Molnupiravir, an oral antiviral treatment for Covid-19. We know that the second order was quoted at least eight times higher than the first one submitted the previous day, despite which the order was confirmed. That looks very fishy. What should an investigation determined to get to the bottom of this matter be looking at?

The first thing an investigator should do is to question the members of the High-Powered Committee (chaired by the Prime Minister) to determine whether that Committee gave the green light to purchase that large quantity of the drug and at that high price. Everything should start from there.

* The Senior Chief Executive, Mrs D. Allagapen, and the Government Chief Pharmacist, H.K. Bucktowar have left the Government on an early retirement basis; whether they have been forced to leave or not is not known. The Permanent Secretary, P. Mawah, and the Principal Pharmacist, B. Naeck have been suspended; Ms Z.B. Uladin-Auckbarally and S. Meejane have apparently been transferred to other ministries in the aftermath of this affair in a bid, it seems, to appease public outrage and without any investigation conducted to establish any wrongdoing and the responsible parties. Doesn’t this go against the principles of natural justice?

Whether a civil servant retires or is made to retire or whether s/he is suspended or transferred, the core issue is whether civil servants acted on the instructions of the High-Powered Committee or those of the minister, or whether they took it upon themselves to strike the deals.

Let’s put a speculative question: Is it possible that civil servants would have taken the decision to purchase the drug of their volition and without the knowledge of the politicians most concerned?

At this stage there is no issue of natural justice involved, what matters is that the ICAC conducts its investigation in an objective, impartial and timely manner; the rules of fairness and objectivity must prevail over politics or political patronage. It also behoves the civil servants to talk and tell us what really happened. It’s not in their interest to adhere to the law of the omerta…

* In fact ICAC has been tasked by the Prime Minister, according to Minister Lesjongard, to conduct an inquiry into this matter. One would expect that it would diligently do so in a comprehensive, objective, impartial and timely manner. Would that be too much asking?

We know what’s the public perception of ICAC, but let’s give it the benefit of the doubt. We would therefore wish to see ICAC really going down to the bottom of the case, starting with the questioning of members of the High-Powered Committee, which should in normal circumstances be aware of all decisions that are being taken to fight the Covid-19 pandemic. Will ICAC dare to do that?

The sceptical will refer to ICAC’s handling of the Angus Road case and the cancellation of the Mutual Legal Assistance Request to the UK in relation to that case. They may hopefully be proved wrong. It is also to be hoped that the referral of this case to ICAC is not a political ploy to prevent questions in Parliament, the more so now that Parliament has been adjourned and is now taking a three-month vacation. More importantly, the ICAC should not be seen sitting on this case for months or years.

* In the aftermath of this affair, Opposition parties have called for the resignation of the Minister of Health. This raises the issue of ministerial responsibility. What does this principle entail?

A minister is responsible for his department. He should be able to rely on the integrity and honesty of his officials. Just as he should act on the sound advice of his officials, the latter are also bound to give the minister proper and objective advice. But if the civil servant has committed a mistake or has acted with impropriety, it’s the minister who is answerable to Parliament, notwithstanding the fact that a culpable civil servant may be sanctioned.

* We understand that this ‘principle is considered essential, as it is seen to guarantee that an elected official is answerable for every single government decision’. How it works in practice is a different matter, but aren’t ministers’ responsibility limited to formulate policies and implementation resides with civil servants?

A minister’s responsibility is not limited to devising policies only.

Implementation resides with officials; they have a crucial role to play here, but it is expected that in the execution of policies set by the political masters, they will not blindly adhere to what the minister has decided. It is their duty to alert the minister to any impropriety in the execution of the policy.

Of course, the minister may just ignore the advice and instruct the civil servant to go in a desired direction. There is not much that the civil servant can do about this in such circumstances, but it is in her/his interest to place on record whatever verbal instructions s/he has obtained from the minister with a view to protecting her/himself.

But if the civil servant takes the selfish view of considering that s/he could or would draw any material benefit from the implementation of a given policy, then s/he would be venturing together with the minister into the world of corruption.

* It’s said that wherever there is ministerial responsibility, the accountable minister is expected to take the blame and ultimately resign. This means that if waste, corruption, or any other misbehaviour is found to have occurred within a ministry, the minister is responsible even if the s/he had no knowledge of the actions, nor been a party to such actions. How does this make sense?

A minister should take the blame for the shortcomings of his officials. The shortcomings may be due to a genuine mistake, in which case the minister would be expected to make a statement in parliament. But if it’s a gross mistake or a clear case of impropriety by the civil servant, the minister is expected to resign leaving it to the Public Service Commission to sanction the civil servant.

* Notwithstanding constitutional conventions in governments using the Westminster system, our own Constitution (Section 68) states that ‘where any Minister has been charged with responsibility for the administration of any department of Government, he shall exercise general direction and control over that department and, subject to such direction and control, any department in the charge of a Minister (…) shall be under the supervision of a Permanent Secretary or of some other supervising officer…” Doesn’t that clearly demarcate the areas of responsibility of those tasked to run the government?

Of course, there is a clear demarcation, but we all know what prevails in Mauritius. And with a number of spineless officials and advisers – certainly not all of them – around to do the bidding of the politicians, it’s very often a case of : ‘Yes, Minister’, rather than ‘No, Minister’.

* In the UK, in 1983, when 38 IRA prisoners broke out of the Maze prison, the Secretary of State for Northern Ireland, James Prior, did not resign, explaining that the break-out was not caused by any policy initiative originating from him. This latter position seems to have become the norm in British politics. Doesn’t this sound reasonable?

Not necessarily. There have been occasions when ministers have resigned for a number of reasons, namely failure to properly direct their respective departments or disagreement with government policy.

Robin Cook, who was foreign Secretary in the government of Tony Blair, resigned over the Iraq war issue.

In 1954, the Crichel Down affair resulted in the resignation of a senior minister of the British Cabinet. It has been said that in ‘the history of modern parliament, the Crichel Down affair takes on momentous significance, and has been described as a ‘political bombshell’.

The public inquiry into the Crichel Down events revealed a catalogue of ineptitude and maladministration and resulted directly in the resignation of the Secretary of State for Agriculture Sir Thomas Dugdale, then a senior cabinet position, and was the first case of ministerial resignation since 1917.

* One impediment to civil servants standing up to ministers’ instructions that may go against the public interest relates to the constitutional amendment that facilitates their removal from office in the public interest. Can’t this constitutional provision be challenged in court?

This is true. In 1982, following the massive victory of the MMM-PSM at the general elections, the government formed and led by Sir Anerood Jugnauth, Harish Boodhoo and Paul Berenger, the top brass of our civil service was simply decapitated and the Permanent Secretaries who had served the country since independence loyally and had helped to forge the destiny of Mauritius, were simply sacked for purely political motives. That was the start of the downfall of the Mauritian Civil Service with ministers becoming the overlords of Service and partisan politics gradually creeping into the system.

* Published in print edition on 24 December 2021