‘Mauritius Commercial Bank Ltd v Robert Lesage and Others’
By S. Modeliar
Many aspects of the siphoning of the NPF money and its disappearance still remain an issue and it is high time that the public should know what happened to the taxpayers’ money
The judgment in the case of the Mauritius Commercial Bank (MCB) against Robert Lesage is out. Along with Teeren Appasamy, he has been ordered to pay over nine hundred million rupees to the MCB. The judgment has of course provoked many reactions. That was to be expected. It would not be appropriate to comment on that judgment as the case is still sub judice or still subject to judicial control. However as is his habit the Leader of the Opposition has already seen in the judgment a censure of ICAC, the guilt of Mr Lesage and Mr Teeren Appasamy and a dereliction of duty on the part of the government. He has asked for a select committee of parliament to investigate the case of the MCB mega-fraud. This is as amusing as it is ridiculous.
The Prime Minister, Navin Ramgoolam rightly stated that it would not be proper to set up such a select committee because that would go against the basic principle of the separation of powers between the three branches of government that is ours by virtue of our Constitution and the Westminster pattern of government with which we have been endowed. The judgment in the ‘Mauritius Commercial Bank Ltd v Robert Lesage And Others’ case is not yet final because Mr Lesage can still file an appeal before the Court of Civil Appeal of the Supreme Court. He has also the possibility to appeal to the Privy Council if he is granted leave to do so either by the Supreme Court or by the Privy Council. The statement of the Leader of the Opposition is yet another example of his ignorance of the basic tenets of our system of government and of our justice system. So long as a case is still the subject matter of the judiciary it would be unconstitutional and against our laws to try to interfere with it in some other forum.
The judgment itself is basically a rejection of the testimony of Mr Lesage. This is an exercise on the evaluation of evidence. The judgment does not refer to the N’Tan report, which presumably was not produced before the Court. That report made a number of criticisms against the MCB on the manner in which the management of accounts was sorely lacking. The judgment has not dealt with the responsibility of those at the apex of management. The judgment has not discussed how it could have been possible for one man to manipulate such a colossal amount of money without the knowledge of the top management of the MCB. This is precisely why and where the statement of the Prime Minister on the establishment of a Commission of Inquiry on the ramifications of the MCB saga assumes all its importance. There are still many grey areas notwithstanding the judgment of the Commercial Division of the Supreme Court.
The Director of Public Prosecutions has filed a case of money laundering against the MCB. He has his reasons for so doing and we cannot query him on by virtue of his absolute independence under section 72 of the Constitution. On this issue the Leader of the Opposition is also wrong in his formulation of his PNQ. He said the following as reported by Le Mauricien on Tuesday: “Et si je puis l’exprimer ainsi, la MCB a été blanchie. Peut-on savoir si l’ICAC compte maintenir le procès au criminel contre la MCB pour des délits de blanchiment de fonds?” It is not ICAC that advises prosecutions but the DPP. Paul Bérenger seems to have an obsession with ICAC since the demise of ECO brought about by the MMM in the wake of the Jayen Cuttaree case. As the Prime Minister stated in Parliament on Tuesday (again as reported by Le Mauricien): “Je suis surpris par la question du leader de l’opposition. Il y a un cas pour des délits de Money Laundering devant les instances judiciaires appropriées. Le mieux est d’attendre que cette étape soit bouclée avant la commission d’enquête.”
The Prime Minister has also stated in Parliament, following the PNQ of the Leader of the Opposition, when the matter of the NPF funds deposited at the MCB surfaced in 2003 Paul Bérenger was the deputy Prime Minister and Minister of Finance and it took one week for the matter to be reported. In one week much evidence may have disappeared. “Puis-je rappeler à la Chambre que l’affaire MCB/NPF avait éclaté le 6 février 2003 et qu’il était question du détournement d’une importante somme. Personne ne fut informé de la chose initialement, sauf le vice-Premier ministre et ministre des Finances et le ministre de la Sécurité sociale. Ce ne fut le cas que le lendemain. Ce ne fut que huit jours plus tard que la Banque de Maurice en fut informée. La Banque centrale devait prendre trois jours pour envoyer des inspecteurs de la Banque à la MCB… En passant, puis-je savoir pourquoi le scandale MCB/NPF n’a été mentionné que le 14 février 2003 alors que cette affaire avait éclaté le 6 février 2003 ? Pourquoi Paul Bérenger avait conseillé au Premier ministre d’alors de ne pas en faire état?”
It would be good for Paul Bérenger to explain this attitude of his in 2003 in the name of transparency instead of trying to scapegoat ICAC or the DPP. All that he could say in 2003 and today was that his priority was to contain a run down on the MCB as it is the most important bank of the country.
The other issue that the Leader of the Opposition raised was the extradition of Teeren Appasamy from the United Kingdom. Extradition is a complex matter in international law and is not granted at the beck and call of Paul Bérenger or of all the public writers of the press loyal to the MMM. Once there is a request for extradition by a State, in international law the State where the alleged fugitive is to be found engages the judicial process in compliance with the rule of law. The request for the extradition of Teeren Appasamy was presented before the judicial authorities in the United Kingdom. The British Court ruled that Teeren Appasamy should not be extradited on the ground of his ailing health. This is a matter over which neither ICAC nor the government has any control. It is a matter solely within the province and prerogative of the judiciary in the United Kingdom. It is always open to the authorities in Mauritius to file another request for the extradition of Teeren Appasamy within the strict ambit of established and existing legal procedures.
There is no doubt that a bank like the MCB may feel vindicated by the judgment of the Commercial Division of the Supreme Court. But this judgment, as we have mentioned above, is more an exercise in the credibility of Mr Lesage in the context of the evidence presented before the court. Many aspects of the siphoning of the NPF money and its disappearance still remain an issue and it is high time that the public should know what happened to the taxpayers’ money. This is why the determination of the Prime Minister to establish a Commission of Inquiry is revealing of his determination to shed light on the MCB scandal once the judicial procedures have become final.
* Published in print edition on 9 July 2010