Q & A
The STC-Betamax Imbroglio
By R Laxman
Using a Q & A format, R. Laxman raises a number of issues about and following the Supreme Court’s judgement in the so-called Betamax case, giving his clarifications about them so as to provide alternative perspectives to the public. He draws attention to decisions made by the DPP in earlier cases such as the induction of former Chief Justice Garrioch in the infamous Illovo deal which by-passed the advice tendered by the State Law Office, as also to the contracts awarded to the IPPs – all this in a bid to give a more complete picture to the public.
* Does the Supreme Court judgement in the STC vs Betamax case constitute a disavowal of the Office of the Director of Public Prosecution’s earlier decision? And does it automatically follow from that judgement that the DPP should reopen the file submitted by the police and proceed with prosecution as it is being canvassed by the ruling alliance and the MMM’s leader?
Not at all, The DPP operates independently of the Supreme Court except if there is a ruling enjoining the DPP to act in a certain manner. Even here if ever there is a judicial review of the powers of the DPP to prosecute or not to prosecute, the Supreme Court can only give directives on what the DPP should have considered or not. But the Supreme Court cannot tell the DPP to prosecute or not to prosecute.
The DPP is neither at the beck and call of the Executive, or politicians or any stooge of any government of the day. If we go down memory lane, we’ll see that when DPP Hamuth filed the case against Cehl Meeah, there was no lynching of the DPP. Similarly, when DPP Angoh filed the case against Bernard Maigrot (whose lawyer was no other than Mr Ivan Collendavelloo) there was no lynching of the DPP. Why now? Would some politicians have relished having a DPP they can manipulate at will?
* Could the ODPP be faulted for its handling of this case?
The DPP acts on evidence submitted to him following a police investigation. He has to make sure that the evidence on which he will prosecute will satisfy the burden of proof, which is one beyond doubt in a court of law. He does not have to prosecute because of a declaration from the executive in that sense.
In the Betamax case, the police file was submitted to the DPP who found no satisfactory evidence to prosecute. It was open to the Commissioner of Police to challenge that decision as decided by the Privy Council in the case of Mohit against the DPP in 2006. But what did the Commissioner do? He retained private counsels to challenge non-prosecution by the DPP’s decision on the ground that the DPP had not sent the police file to him following his decision. Who advised the Commissioner to file such a case is not known. The Supreme Court even went to the length of stating that the application by the Commissioner was no more than a disguised form of appeal whereby the Supreme Court was being asked to sit and reconsider the decision of the DPP.
* The Supreme Court judgement in this case is not the end of the matter, it would seem, as Betamax has made known its intention to apply for authorization to appeal to the Privy Council. What happens next? Can the DPP reopen the case in the meantime?
The DPP has already given an answer to that. He advised the Commissioner that “he may wish to carry out further investigation with a view to determining whether offences may have been committed under the PPA in the present matter”. It is not for the DPP to investigate a case. This is the task of the police. The DPP decides whether to prosecute or not in the light of evidence submitted to him in a police file. The DPP has the right to request for a further enquiry on any particular aspect of a case.
* Would things have been different if the Government had its way and set up a Prosecution Commission?
With a Prosecution Commission, prosecution of political opponents or those whom the government – any government for that matter — cannot stand would have been the prerogative of the government. Who would have been members of that Commission? It is well known what the agenda of the current government was when it came up with the idea of that Commission.
* The STC-Betamax case hinges on the amendments that exempt the STC from the procedures of the Procurement Act. The Judges decided that the STC is not exempt. What does this mean and imply?
The whole case turned on the interpretation of the nature of the services that Betamax was providing and the exemption of the State Trading Corporation from the Public Procurement Act would have depended on the type of services Betamax was providing. The Supreme Court analysed the legislation on the matter and concluded that the nature of the services was such that the State Trading Corporation was not exempted from the Public Procurement Act.
* Does this judgement make the Independent Power Producers’ contracts and a host of others illegal, as claimed by the Labour Party leader?
The answer to that would depend on the nature of the services subject matter of the contracts. But even if a contract is perfectly legal, an award may be set aside on ground of public policy as provided by the laws regulating arbitration in Mauritius.
* According to information that has been obtained by the media, the State Law Office would have okayed the STC-Betamax contract. If so, can any legal offence be committed if those responsible for awarding the contract acted on that advice?
* According to news that appeared in a daily, former minister Soodhun who was in the government of Navin Ramgoolam when the contract was awarded to Betamax stated that legal advice was obtained from the State Law Office. If those who took the decision to award the contract acted on legal advice, notwithstanding the ruling of the Supreme Court, in what way did they commit an offence? The Commissioner may perhaps enlighten us on that.
* Former CJ Garrioch was called in to vet the Illovo contract at one time. Was that the proper thing to do, that is getting the advice of an independent party in such sensitive matters?
It was alright then to bypass the legal advice of the State Law Office and run to the late Chief Justice who gave an advice contrary to the State Law Office. Nothing sinister was seen in that then. Today when members of the former government acted on legal advice, they are pilloried.
* Mauritius is positioning itself as an international arbitration centre. What impact can this judgement have on this ambition?
Too early to say, but it may or may not. There is no doubt that foreign jurists will comment on the case and its impact on international arbitration in Mauritius.
* Generally speaking, in what circumstances can any arbitral award be rejected by a national court?
Either because the subject matter was not arbitrable or the award is against the law of a national jurisdiction, or on ground of public policy.
* The national interest might be best served if Mauritius had introduced a Right to Information Act and Public Interest Litigation to check “forgery, conspiracy and related offences” at the very beginning of the process, right?
Forget about the Freedom of Information Act. Who would dare bell the cat? As for Public Interest Litigation, the Supreme Court of India has made great progress in that area. Can we expect the Supreme Court here following suit? Each time there is an important case it is thrown out on the ground that the applicant has no interest in the matter.
* Published in print edition on 7 June 2019