Political strategy, solidarity or a decision based on principles? 

Mass resignation of MSM Ministers

By SR Balgopal

On 26^th July 2011, the population was informed that six MSM ministers including the Minister of Health and Quality of Life, Mrs Hanomanjee had resigned. The MSM ministers resigned from their ministerial posts but their leader Hon Pravind Jugnauth stated that he remained loyal to the Prime Minister. He also explained that the resignation was in response to the way the Independent Commission against Corruption (ICAC) had treated Mrs Hanomanjee. Pravind Jugnauth stated as follows at his press conference on the same day:

“Comme au MSM nous avons des principes, nous sommes disciplinés, nous avons dans un élan de solidarité avec Maya Hanoomanjee, décidé de démissionner. Nous attendons, nous souhaitons aussi qu’elle soit lavée de tout blâme.”

Pravind Jugnauth also added that: “Nous sommes toujours loyaux avec l’Alliance de l’Avenir et nous allons continuer à travailler pour le progrès et l’avancement du pays.”

The backdrop of the mass resignation of MSM Ministers appears to stem from the perception, in MSM quarters, that Mrs Hanomanjee has been at  the receiving end of unfair treatment by the ICAC in that she had been arrested in a case where, in the considered view of the MSM, she was blameless. This perception has also been fuelled by the position taken by Leader of the Opposition who expressed his firm view that ICAC should direct its enquiry towards Minister Jeetah. It is the contention of the MMM that the tender which was launched by the Ministry of Health and Quality of Life, a portfolio held at the material time by Hon Jeetah, was tailor-made to favour Medpoint.

What type of “solidarity” is Pravind Jugnauth referring to? Instead of “solidarity” one would expect MSM Ministers to talk of “responsibility” and even more of ministerial responsibility. The doctrine of ministerial responsibility which obtains in Commonwealth jurisdictions which follow the Westminsterian tradition dictates that a Minister under investigation has no alternative but to resign pending the completion of the enquiry and the determination of the case, if any. The Prime Minister has, on 26^th July, informed the local media that prior to proceeding to the UK, he had invited Hon Hanomanjee to step down but the latter failed to do so. Are we to understand that the MSM do not subscribe to the doctrine of individual Ministerial responsibility? This would not seem to be the case as the leader of the MSM clearly expressed his view that a Minister who is facing a provisional criminal charge should step down. If we are not in the realm of individual Ministerial responsibility, are we in the realm of collective Ministerial responsibility? Again, clearly not, as collective Ministerial responsibility entails that Cabinet members agree to all decisions of Cabinet. If they fail to agree, they have no alternative but to step down. 6 Ministers of the MSM have resigned, not because they failed to agree with a Cabinet decision (clearly, ICAC’s decision to lodge a provisional information against Hon Hanomanjee is not a Cabinet decision) but because of the way ICAC treated her. So, if we are not in the realm of individual or collective Ministerial responsibility, what can be gleaned from the MSM’s stand? At first sight, a few possibilities could be envisaged:

(1)  The MSM is levelling a thinly-veiled threat at the Prime Minister (The MMM has been very vocal to the effect that it is the Prime Minister who chairs Cabinet meetings and any decision to purchase MedPoint must necessarily involve the Prime Minister’s consent and his responsibility).

Is the MSM taking the cue from the MMM to compel the Prime Minister to request Minister Jeetah to step down or to make the Prime Minister himself the subject of an ICAC enquiry? Is the ICAC’s enquiry not directed at the second valuation of MedPoint rather than the policy decision to acquire a hospital/clinic for the purposes of setting up a geriatric hospital? If this is the case, how relevant is it to interview the Minister who initiated the tender? If it is the case for ICAC that the tender was “tailor-made” to favour MedPoint, then it would be inconceivable that the ICAC or the Office of the DPP would countenance avoiding investigating the Minister under whose tenure of office the so called “tailor-made” tender was made.

(2) Is the MSM not forcing the Prime Minister to expel it from the Alliance de L’Avenir, thereby causing political instability in the country? One could imagine how the former MSM leader, Sir Anerood Jugnauth, would have reacted had one of his political allies put him in the position that the MSM has put the present Prime Minister.

Realistically, elections are not before 2015 and the MMM has no chance of being in government before 2015 except if the MSM is expelled from government. With its stand, the MSM has left the door ajar for the MMM to join government in the “interest of the country and in the spirit of patriotism” given the challenges faced by the country. This would, in 2013, leave the Leader of the Opposition, to assume office as President, once Sir Aneerood Jugnauth’s term in office expires. This possibility is not very remote as the MMM has spent a long time in the opposition and one could hardly blame ageing members of the MMM for yearning for a ministerial seat in the twilight of their political careers.

(3) The MSM wishes that the ICAC treats Minister Jeetah in the same manner that it has treated Hon Hanomanjee.

Is the MSM not casting doubts on the integrity of ICAC and the Office of the DPP by adopting such a stand in the teeth of an enquiry which has not yet been completed? By resigning from government merely because of the way ICAC would have treated Hon Hanoomanjee, the MSM is unfortunately leaving a lingering doubt that the Prime Minister can influence the way ICAC treats suspects in an investigation. One would hope that this is not the intention of the MSM as the Labour Party has always insisted that Ministers who are subject of criminal proceedings should step down. The MSM, by expressing their indignation of the way ICAC has treated one of its Ministers should not knock at the Prime Minister’s door but should take the fight to the Courts where, in the event of a prosecution, its former Minister would benefit from all the constitutional safeguards and guarantees afforded to a suspect under our laws. The stand adopted by the MSM gives rise to an unhealthy picture that it is within the powers of the Honourable Prime Minister to direct ICAC how to investigate an offence and how to treat an accused party.

From the above, the following issues spring to mind:

(1)  The ICAC is an independent body which investigates corruption offences and it does not have the final say as to whether or not any of its enquiries will end up in a prosecution, let alone a successful prosecution. ICAC should not be perceived as more than it is — it is above all an investigative body, albeit a glorified one, and lawyers of ICAC can only prosecute cases under the powers delegated to them by the Director of Public Prosecutions;

(2) Only the Office of the Director of Public Prosecutions can advise prosecution in an ICAC case, ICAC may not refer a case to Court without the consent of the DPP;

(3) Even when a prosecution is advised, it is up to the prosecution to prove the case beyond reasonable doubt and it must discharge its burden before an independent, impartial court of law whose decision is appealable;

(4) The Office of the Director of Public Prosecutions may direct ICAC to conduct a further enquiry in any case, the more so if it is satisfied that an enquiry is incomplete or unfair. We do not need to remind readers that in the high profile prosecution case involving the ICAC and Mauritius Commercial Bank, the charge was dismissed by the Intermediate Court as the Court found that ICAC did not submit all relevant documents to the Office of the Director of Public Prosecutions and that this entailed a possibility that the discretion to prosecute was exercised in the absence of potentially crucial elements, thereby warranting a stay of proceedings on the grounds of abuse of process.

(5) If a Court of law finds that the ICAC has been biased in its enquiry in the MedPoint case by leaving, what appears to be an obvious aspect, namely the initial so-called “tailor-made” tender, it is arguable that a Court of law might dismiss a charge against any accused party on the grounds that the enquiry was unfair and incomplete, thereby leaving the Office of the Director of Public Prosecutions with an incomplete picture and making the use of the discretion to prosecute an inherently flawed one;

(6) The Office of the Director of Public Prosecutions is headed by the DPP whose independence is guaranteed by his mode of appointment and whose security of tenure is protected by the Constitution. In this context, and in the light of the MCB prosecution which failed because the Office of the DPP was not provided with all material documents by ICAC at the time it advised prosecution, it would be beyond belief that the Office of the DPP might advise prosecution on an incomplete file submitted to it by ICAC.

(7) It is public knowledge that the investigation of ICAC is not yet over. Is it necessary for the Leader of the Opposition to put undue pressure on ICAC in relation to a case for which an enquiry is not yet completed? The Leader of the Opposition has taken the unprecedented step of advising ICAC to record a statement from the Prime Minister. What next? Will he advise the DPP to act independently in the MedPoint case? It is best to allow institutions to operate independently and hope that they have learned from past mistakes. However, the holder of a constitutional post, like the Leader of the Opposition, should tread carefully when “advising” ICAC, any institution or any person to act in whatever way he thinks they should act.

(8) The DPP’s decisions are, in view of our case law, judicially reviewable. Should the ICAC enquiry reveal enough material against any person and should the DPP fail to discharge his duties in deciding the case, one may expect the DPP’s decision to be the subject matter of a judicial review. On that account, it is expected that transparency and fairness will prevail in the MedPoint case.

To conclude, one may only express deep concern at the way the MSM has reacted when one of its Ministers has been provisionally charged by the ICAC. The reaction seems to be extreme as a provisional charge does not always result in a formal charge and a formal charge does not automatically entail a successful prosecution. Further, a conviction may be quashed on appeal. One wonders what the real reasons behind the mass resignation of MSM Ministers are. These resignations have allegedly been made on the altar of “solidarity”, whatever that word means… 

* Published in print edition on 29 July 2011