By R. Laxman
The long awaited judgment in the MedPoint case is out. It must be made clear at the outset that there is nothing political or jubilant in this case. It is a case where an accused occupying a high position was prosecuted and like any accused he used all the legal avenues open to him under the law to vindicate his rights. One senior politician made a statement that the case was a political vendetta. That same senior politician had the late Sir Gaetan Duval arrested in 1989. Surely that was not a political move.
A look at the judgment shows that the Privy Council did not agree with the Supreme Court when it criticized it on a number of points. One of the main reasonings of the Supreme Court was that since the sister of the accused was a shareholder as a distinct legal personality she could not have an interest in the decision taken by the then minister of finance. The Privy Council rejected that view. It held that the law on conflict of interest addresses situations in which a person has an interest in a decision, not an interest in an entity or an asset.
The Privy Council clarified the law on conflict of interest on a few points. The Law Lords stated that the defence of good faith is not open to an accused who is charged with conflict of interest. That was a defence raised by the accused. The judges also made it clear that the offence is not one of absolute liability and the criminal intention of the accused has to be proved. The Law Lords made it a point to underline that the accused in the case never tried to defend himself on that issue. The Privy Council went on to say that the accused was never denied an opportunity to defend himself on the issue of criminal intention as found by the Supreme Court.
On the issue of the concept of personal interest, the Privy Council made it clear that that the provision of the law is to prohibit participation in a decision-making where a public official, his relative or associate has an interest which gives rise to a conflict.
It would appear that on the factual issues the Privy Council did not disturb the findings of the trial court. The Privy Council would have agreed that the accused did take part in proceedings in his capacity of a public official as minister of finance. The defence of the accused that he did not take part in proceedings was rejected. In fact his defence was that when he approved the reallocation of funds it was a mere administrative decision. Ministers and other public officials will have to be very cautious from now on.
When all is said, the core of the decision of the Privy Council is contained in paragraph 39 of the judgment and one wonders why the Law Lords did not simply write this one paragraph as the judgment instead of going through a long recital of facts and some legal issues and finally deciding the case as if it were a civil case.
In fact the issue, as found by the Privy Council, is that since there was a contract for the purchase of Medpoint the remaining obligation of the government was to pay the amount irrespective of the source of funds. In fact the question arose as to whether the funds should come from the Ministry of Finance or the Ministry of Health. When the accused approved the of reallocation of funds, his sister who was entitled to the money had no interest in the decision-making process to allocate funds for the payment. This is what the Privy Council wrote: “The decision, whichever way it went cannot have affected any interest of Mrs Malhotra or the company in any way. There was already a binding contract and a legal commitment to pay the money. The funds to pay the money was available. The only question was from which pockets it should come.”
It would be interesting to see how the law evolves in the light of the judgment.
* Published in print edition on 1 March 2019