Whatever the outcome of the Privy Council judgment it will have at least the merit of clarifying the law on conflict of interest
By R. Laxman
What is known as the MedPoint case is nearing its end with the judgment of the Privy Council pending after the case has been heard on 15 January. Guesses are running wild and, according to some news reports, many lawyers have expressed their opinion on whether the Prime Minister, the accused in the case, will be finally acquitted or not. Some lawyers have been relying on the length of the submissions of the lawyer for the Prime Minister to state unequivocally that an acquittal is forthcoming. Others have been more circumspect and have refrained to make any comments for or against an acquittal.
Before delving in the thrust of the arguments presented during the hearing in London, some preliminary observations are called for. What was the director of ICAC, Navin Beekarry, doing at the Privy Council when he knew full well that ICAC would not be called upon to offer any submissions? Was the presence of the High Commissioner in London, Girish Nunkoo, a relative of the Prime Minister necessary? Even if he is a political nominee, he represents the whole of Mauritius irrespective of political allegiance and not the Prime Minister? Anyway, this happens only in Mauritius.
To come back to the case itself, the points that have to be decided by the Privy Council are whether the Prime Minister had a personal interest when he approved the allocation of funds for the payment to his sister and his brother-in-law, shareholders in the MedPoint building. One of the questions that was raised by one judge is whether the fact that the sister of the Prime Minister had an interest in the company of which she was a shareholder would be sufficient or whether it should also have been established that the sister had a personal interest in the decision to allocate funds for the payment. An interesting point to watch out for.
One of the strong points made on behalf of the Director Public Prosecutions by Mr Perry QC was that the Prevention of Corruption Act (POCA) creating the offence of conflict of interest establishes an absolute prohibition on a public official participating in a decision in which his relative or an associate of his has personal interest. This is so in order to preserve the integrity of the process when a public official is involved in taking a decision.
According to him a public official who places himself in a situation of conflict of interest cannot invoke the defence of good faith in that he was not aware of the personal interest of the person who would benefit from the decision. In fact, the POCA does not provide for such a defence as the prohibition of participating is absolute.
On the issue of criminal intention, Mr Perry expressed the view that the Prime Minister was “reckless” when having full knowledge that his sister was going to benefit from the decision he took part in making when he approved the allocation of funds.
Ms Montgomery on behalf of the Prime Minister argued that when a public official is engaged in taking a decision the public official must clearly be aware of the personal interest of the relative or associate. According to her, the sister of the Prime Minister had no personal interest in the decision to allocate funds for the payment for MedPoint as the allocation of funds was an accounting exercise. She said that the interest in question must be actual and not apparent interest. She added that there was no evidence to show that the Prime Minister ought to have known about the personal interest of his sister.
The judges asked a few pertinent questions. For example, one judge asked the question as to whether the fact that the sister of the Prime Minister had an interest in the MedPoint company would suffice to qualify this as a personal interest in the whole process. The other question was whether the sister provided the connection and the interest was that of the Prime Minister. The case ended with one judge asking whether the Prime Minister should “severely” have stayed away from the whole transaction. The presiding judge stated before leaving the court that the case was important for Mauritius.
Whatever the outcome of the judgment it will have at least the merit of clarifying the law on conflict of interest. The Privy Council will no doubt give guidance on whether there is an absolute prohibition for a public official to participate in a decision if a relative or associate of his has a direct interest in the matter. The judges will also need to clarify whether the defence of good faith is open to a public official when he participates in such a decision.
The law should also be clarified on whether the prosecution has to prove that the relative or associate took part in the decision. If this is the case it will be almost impossible to prosecute anybody under the existing law. In the light of the judgment there will be perhaps an urgent need to review the law.
* Published in print edition on 18 January 2019