‘Political donations are not emoluments for purposes of income tax’

Integrity Reporting Services Agency vs Dr N. Ramgoolam

* ‘There is no immunity that a former prime minister enjoys from a criminal case or from the provisions of the law on unexplained wealth’

* ‘Does the case against Navin Ramgoolam have any political motivation? However, much you want to keep politics out of certain matters, politics will and does come back to haunt you’

By LEX

The application of the Integrity Reporting Services Agency for the confiscation of the presumed “unexplained wealth” of former PM Navin Ramgoolam before Judge Hamuth-Laulloo in Chambers, that is only through affidavits, has been dismissed as requiring the case to be thrashed out in court with opportunities for both sides to adduce or rebut evidence and be cross-examined. Lex delves into the legal aspects and on the judge’s observations on the application by the IRSA.

* What is the meaning of “unexplained wealth, and in what circumstances can the Integrity Reporting Services Agency (IRSA) issue an Unexplained Wealth Order?

Under the Good Governance and Integrity Reporting Act 2015, unexplained wealth includes any property under the ownership of a person to an extent which is disproportionate to his emoluments and other income; the ownership, possession, custody or control of which cannot be satisfactorily accounted for by the person who owns, possesses, has custody or control of the property; or held by a person for another person to an extent which is disproportionate to the emoluments or other income of that other person.

* Dissatisfied with the explanations given by Navin Ramgoolam on the source of funds confiscated by the police at his residence in 2015, the IRSA has applied to the judge in Chambers for an Unexplained Wealth Order to be served on the Labour Party leader. Justice S.B.A. Hamuth-Laulloo has rejected the IRSA’s application and referred “the parties to the competent court as provided for by Section 16 of the Good Governance and Integrity Reporting Act 2015? What’s the reasoning behind the Judge’s decision?

Any application before a Judge in Chambers is done by way of affidavits where all facts of the application are recited. The other party also files an affidavit to rebut these facts. Any application may be disposed of in chambers pending a final determination of the case before a trial court.

One of the conditions of a chamber’s application is that the requesting party must file or undertake to file a main case before the competent court. What the judge stated in this particular case is that there are many issues to be thrashed in the case and that cannot be done in chambers on the basis of affidavit evidence but in a main case where parties can testify and be cross-examined.

* Navin Ramgoolam’s explanations to the IRSA on the source of his funds are that “part of the funds represents his earnings as Prime Minister and per diem and the rest represents donations to the Mauritius Labour Party”. One would assume that Navin Ramgoolam would without any difficulty provide evidence for his earnings and per diem. What about the political donations to the Labour Party?

Precisely. This what the judge had in mind. All allegations of unexplained wealth and the defenses put up by Dr Navin Ramgoolam would have to be thrashed in open court with each party presenting evidence.

Will he be able to provide evidence as regards the alleged political donations, and will that evidence convince the court? That remains to be seen. The same question can also be put to the leaders of all political parties, who have been receiving funds – that’s an open secret by the way – from different sources, both local and foreign.

* If we go by the definition given by the Good Governance and Integrity Reporting Act 2015 to “unexplained wealth”, this would relate to any property “which is disproportionate to his emoluments and other income”. Do you think our courts will take the view that political donations also fall within the ambit of that definition, that is “emoluments and other income”?

We all know that political donations form part of the political culture of Mauritius. Now, if a person targeted by the Integrity Reporting Services Agency invokes political donations as the source of funds in his custody, it will be up to the Agency to rebut that assertion.

As at present advised, political donations are not emoluments for purposes of income tax. It is not clear whether those who make such donations would be allowed to deduct same as expenses in their income tax returns.

* It is widely suspected that all political parties, but mostly the major ones, have down the years been receiving financial assistance from foreign countries directly or through their embassies here or even from particular organisations and private corporations for their political activities and for elections. Does Mauritian law proscribe such political financing and donations, and is there any obligation on political parties to declare any such financing?

There is no obligation under the present law. This is why the debate around a law on the financing of political parties starts and dies a natural death. No political leader in his right mind in Mauritius would come with a piece of legislation that compels a party to declare the source and amount of political funding received by his party.

* Why is it that in the drafting of the Good Governance and Integrity Reporting Act 2015 the legislator has placed the onus on any person against whom an application for an Unexplained Wealth Order is made to establish, on a balance of probabilities, that his property is not unexplained wealth. In other cases, and circumstances, isn’t it the onus placed on the enforcement agencies to establish any offence having been committed?

This is quite logical. If the burden was out on the Agency, how would it prove that the wealth is unexplained. The burden is placed on the holder of the wealth and, in light of his evidence, the Agency can rebut that evidence.

* Doesn’t this reverse onus go against the principle of presumption of innocence as enshrined in our Constitution?

No, that is not the case as we are not in a criminal trial.

In a criminal case there is the presumption of innocence and the burden of proving the guilt of the accused party rests on the prosecution. However, it is permissible to shift the burden on the accused party to prove certain facts.

For example, if the seals of an electricity metre box are found to be broken, there is a presumption that the custodian of the meter tampered with it so as to engage in electricity theft.

Similarly, the prosecution on a charge of unexplained wealth may argue that the amount of property found at the residence of a person raises a presumption that the wealth is illicit or unexplained thus raising a presumption of guilt that the accused would have to rebut.

* Given the onus placed on any person against whom an application for an Unexplained Wealth Order is made to establish that his property is not unexplained wealth, exercising the right of silence in these circumstances does not help, isn’t it?

Certainly not. It would be in the interest of the person to come up with some plausible explanations.

* There is also the issue of state immunity fora former Prime Minister, as raised by Navin Ramgoolam in his defence, which brought Justice SBA Hamuth-Laulloo to observe that it’s without any merit as there is no such immunity in our law in respect of a former PM. Does that contention make any sense to you?

Judge Hamuth-Laulloo is absolutely right. There is no immunity that a former prime minister enjoys from a criminal case or from the provisions of the law on unexplained wealth.

* The leader of the Labour Party had earlier challenged the Good Governance and Integrity Reporting Act and the constitutional amendments preceding the introduction of the law on the ground that this would violate the principle of the separation of powers between the Executive, the Parliament and the Judiciary. He has also argued that the law, voted by Parliament on 3 December 2015, was specifically tailor-made to hound him. The case has not been determined to date. Leave party politics aside, would you say that he has valid case here in the sense that his constitutional right would have been infringed by this specific law?

In 2015, section 8 of the Constitution was amended to clear the way for the adoption of the Good Governance and Integrity Reporting Act.

Under the new constitutional amendments, provision is made for the confiscation of property under the ownership of a person to an extent which is disproportionate to his emoluments and other income; the ownership, possession, custody or control of which cannot be satisfactorily accounted for by the person who owns, possesses, has custody or control of the property; or held by a person for another person to an extent which is disproportionate to the emoluments or other income of that other person.

Though property right is protected by section 8 of the constitution, there are instances where this protection will not apply. There are derogations so long as they are in the public interest and justifiable in a democratic society.

* One last point refers to the observation made by Justice S.B.A. Hamuth-Laulloo in her Order refers to the “legal duty” under Section 3(7) of the Good Governance and Integrity Reporting Act 2015, “namely to satisfactorily explain the exact point in time at which the monies, subject matter of this application, have come into the possession or under the control of the respondent (Navin Ramgoolam), bearing in mind the requirement of the GGIRA”. She adds: “As matters stand, this is not clear.” It does not seem agreements or arrangements for the exchange of information with foreign supervisory institutions or law enforcement agencies (like the FBI, for example) or international organisations would have been of much help in this regard…

Section 3(7) of the Act states that ‘No application for an Unexplained Wealth Order shall be made under section 14 in relation to any property acquired or having come in the possession or under the custody or control of a person more than 7 years before the date on which the application is made’.

Judge Hamuth-Laulloo hit the nail on the head with that observation. The application should spell out clearly when the wealth that is presumed to be unexplained was acquired.

At the end of the day, you may ask yourself how many applications the Agency has filed on unexplained wealth. Does the case against Navin Ramgoolam have any political motivation? However, much you want to keep politics out of certain matters, politics will and does come back to haunt you.


* Published in print edition on 21 January 2022

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