Sniffing internet traffic to and from Mauritius
Qs & As
He has all the power and means of countering Mr Singh’s allegations if they are indeed lies”
The general outcry that has followed Mr Sherry Singh’s resignation from his CEO job at Mauritius Telecom stems from his allegation that he had been personally asked by the PM to allow the installation and operation of a device from an unnamed third party for monitoring all the country’s internet traffic. Through such an unexpected bolt, some key legal and political questions arise, namely had Mr Singh ensured he had back-up evidence, was he prepared for a smear campaign from high offices and why had the PM not entered a criminal defamation suit against his former strategic advisor if the allegations are untrue. Lex shares his views below.
* What do you make out of the allegation made by Sherry Singh following his resignation as CEO of Mauritius Telecom (MT) relating to instructions he would have received from the Prime minister to allow the installation of “third party sniffers” on MT’s servers/networks to “sniff”/monitor your internet traffic in real time, capturing all the data flowing to and from your computer?
The person most concerned, that is the Prime Minister as minister responsible, for internal security and defence, has bluntly stated that Mr Singh has lied. We are in a chicken and egg situation. On the one hand, we do not have any proof so far of the allegations and without which speculations will run high.
On the other hand, the prime minister cannot remain content with a bare statement that Mr Singh has lied. He has the State apparatus at his disposal. He has the police force at his beck and call. He has the National Security Service at his command. He has a cohort of advisers being handsomely remunerated with taxpayers’ money. With all this at his disposal, he has all the power and means of countering Mr Singh’s allegations if they are indeed lies.
* What would it amount to in terms of offence in case the allegation could be substantiated and confirmed?
First of all, it may amount to an offence against the sovereignty of the State of Mauritius. It will be recalled that the Criminal Code was amended to make it an offence for any person to misrepresent the sovereignty of Mauritius.
In addition, some statements have been made that may point to an offence of high treason. High treason is provided for by the Criminal Code that states that any person who devises any plot or keeps up intelligence with any foreign power or the agent of a foreign power shall commit an offence punishable by imprisonment for life or a maximum sentence of 60 years. In addition, the law provides for the forfeiture of the property of the culprit.
* What would happen if Sherry Singh were unable to substantiate his allegation?
Then we would all have been taken for a ride and that would boost the credibility of the Prime Minister. Mr Singh may be liable to be prosecuted for the offence of spreading false news under the Information and Communication Technologies Act or criminal defamation if the Prime Minister files a complaint along those lines.
* Press reports indicate that the ex-MT CEO would have a recording of the telephone conversation exchanged with the Prime Minister during which the question of “third party sniffers” had been discussed. If that is true, would such a telephone recording (of something that is intended) constitute evidence of a criminal offence (just like the commission of the act itself) in the eyes of the law?
Generally, evidence of telephone conversations is admissible when the witness can identify the other speaker. Therefore, the circumstances under which identification is sufficiently certain is the key problem. A conversation is admissible when it is related by the person who called the listed number of an office or person, and received an answer. Expert evidence will have to be brought to establish the genuineness of the recording. It can be a long process.
* It’s not known at this stage whether this battle will be waged in a court of law or limited to the political battlefield. Do you expect the Prime Minister to take legal action against Sherry Singh with a view to defending his honour and integrity?
Not really; and this would fuel the speculations around the stand of the Prime Minister. If the Prime Minister had to take action, he would have asked the police as he has done in the case of Ms Seenauth to arrest Mr Singh. Why he has not done it so far opens the door to all sorts of conjectures and rumours.
The battle may ultimately turn out to be a political one depending on the campaign that will be launched by both parties against each other. The process has already begun in that direction.
* On the other hand, one would expect Sherry Singh to have kept more ammunition in reserve to protect himself from any form of reprisals. What are his best options other than going to the police?
Going to the police may backfire. If Mr Singh files a complaint against the Prime Minister, it may well be that the police may ultimately arrest him for the offence of “false and malicious denunciation in writing” or for criminal defamation even though no offence may have been committed by him. He might be arrested and remanded to police cell or jail and his fate would be in jeopardy. The best option for Mr Singh is not to go to the police but make a clean breast of everything that is in his possession.
* The allegations made by Sherry Singh are sufficiently serious as to call for an independent commission of inquiry. But that cannot be forced upon the government, isn’t it?
No, it cannot be forced upon the government. Who will preside over such an inquiry if there is one? One of the supporters of the government? How long will such an inquiry last? To what end?
On the other hand, whatever evidence is obtained during such inquiry cannot be used in a trial. The investigation will have to start again at the police level.
* We understand that the Director of Public Prosecutions is empowered by virtue of Section 64 of the District and Intermediate Courts (Criminal Jurisdiction) Act to direct a Magistrate to start an inquiry into this matter. Do you think that may be the only option to get down to the bottom of this matter?
There is much doubt and confusion around this particular section. It says the DPP may direct an investigation into any offence. Should that be predicated on an accused having committed an offence or is it a blanket provision that confers on the DPP the power to direct an inquiry by a magistrate?
The matter is far from clear. Until a court of law gives a ruling on this, it will be difficult to order an inquiry into an offence.
Mauritius Times ePaper Friday 8 July 2022
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