“Would a donation made to a political party be considered payment in cash?”
DPP v Navin Ramgoolam & Appeal to the Privy Council
Qs & As
‘If that is the case, then all political parties would have committed through their leaders or treasurers the offence as set down in the law’
Lex is asked to consider the legal implications of the recent ruling of two SC judges on appeal from the DPP and sending the case back for retrial at the Intermediate Court. Whether and how the SC and DPP treat an announced leave for appeal to the Privy Council remains to be seen but, in all probability, this case will bring up or revolve around “payment” in FIAMLA regulations and its application in the context of financial donations to political parties, a matter which calls for a proper legislative framework.
* It would seem that the procedural requirements to be met for the leader of the Labour Party to go on appeal to the Privy Council (against the judgement of the Supreme Court in the matter DPP v Navinchandra Ramgoolam) either through the Supreme Court or directly by way of special leave are rather complicated given the one specifically related to the need for a final decision in the proceedings. To the uninitiated, the Supreme Court judgement appears to be a final decision. Isn’t that indeed the case?
The main issue is to determine is whether the judgment is a final one in the sense that all issues in the case have been fully dealt with.
In other words, the judges will have to consider whether following the judgment the court left the accused in limbo or made a final decision on the interpretation of the law and thereby put an end to the proceedings.
* There will possibly be objections from the DPP to any application for appeal in this particular case. With that in view, how long do you think it will take for an appeal to be heard and judgement delivered by the Privy Council?
First, there should be a motion for leave. Objection may be taken against the motion by the Office of the DPP. Arguments will be heard on the objections, and a ruling will be given by the judges. All this is time-consuming unless the judges decide to follow a fast-track procedure to deal with the matter. The judgment itself took two years. Why so? one may ask why it took so much time.
If leave is refused, the accused may seek special leave to appeal to the Privy Council.
* As regards the electoral prospects of the Labour Party and its leader, everything now hangs on what the decision that the Privy Council will take when the case comes up for appeal. What do you consider might make for a solid ground of appeal in this matter?
The interpretation of the legal provisions. Section 5 of the Financial Intelligence and Anti-Money Laundering Act (FIAMLA) makes it an offence to make or accept any payment in cash in excess of Rs 500,000 or an equivalent amount in foreign currency, or such amount as may be prescribed. The key word is payment. What does the word payment connote? Would a donation made to a political party be considered payment in cash?
If that is the case, then all political parties would have committed through their leaders or treasurers the offence as set down in the law.
* Can it be surmised that the Law Lords might be alive to extraneous circumstances, (like for instance the fact that the appellant in this case is a party leader, Navin Ramgoolam, seeking his election as Prime Minister, or that the respondent in the case Dayal S. v Jugnauth P. K. & Ors concerns a sitting Prime Minister seeking his re-election as PM) so as not to upset the applecart of the State or are they guided only by principles of law?
Following the judgment of the Privy Council in the MedPoint case, many people took the view that the Law Lords had at the back of their mind the fact that they were dealing with a high-profile politician. Whether such a perception can be justified or not is difficult to say.
* What are otherwise your general comments of the judgement of the Supreme Court, which upheld the appeal of the DPP?
First , one may ask why it took the judges two years to deliver the judgment.
Second, should we remain content with the definition of payment that the court has given? How was the element payment established? Did the judges consider whether the cash was a result of donations?
In a dissenting judgment in the case of Beezadhur (Appellant) v The ICAC and another (Respondents), one Law Lord ruled that exempt transactions should not be narrowly interpreted. Maybe if leave is granted, the lawyers of Navin Ramgoolam could argue that the Privy Council should depart from the narrow definition given to exempt transaction by the majority of the judges in that particular case.
* As regards exempt transactions, is the law perfectly clear about what constitutes an exempt transaction or not?
At present exempt transaction is defined in the FIAMLA as follows:
“exempt transaction” means a transaction –
(a) between the Bank of Mauritius and any other person;
(b) between a bank and another bank;
(c) between a bank and a financial institution;
(d) between a bank or a financial institution and a customer where –
(i) the transaction does not exceed an amount that is commensurate with the lawful activities of the customer, and –
(A) the customer is, at the time the transaction takes place, an established customer of the
bank or financial institution; and
(B) the transaction consists of a deposit into, or withdrawal from, an account of a customer with the bank or financial institution.”
The law may be clear, but it leaves many questions unanswered. For example, if a father makes a cash donation of one million rupees to his son, would that be an offence as it may not fall within the meaning of exempt transaction? If a political party leader accepts one million rupees in cash from a business man, would that be an exempt transaction? It would appear not to be the case.
No wonder a famous British Judge once said the law is an ass.
* What this means is that all of the contributions made to political parties by individuals and corporates in excess of Rs500,000 are in violation of the FIAMLA, and both parties – the ones that make and those that accept – could be charged with violating the law if and when caught?
Of course, and this why it is imperative and urgent that there should be a legislation on the funding of political parties. Surely a major political party must have more than Rs 200 million rupees in cash stashed away in a coffer somewhere.
* The latest about the Akil Bissessur case is that the latter’s ADN has not been detected on the plastic packages containing the drugs confiscated by the Police Headquarters Special Striking Team. The police inquiry is still on. What are your thoughts on this alleged drug trafficking case, marred by the allegation of drug planting at the premises where the lawyer was arrested?
The police might not have anticipated that the lawyers of Akil Bissessur would come up with a demand for DNA testing. Now that the results of the DNA tests have been obtained, the police and the Office of the DPP will have to think carefully before levelling charges against Akil Bissessur even if the investigation is still on. If ever there is a prosecution, many ugly matters may come to the surface.
Planting drugs at the place of a citizen of this country, which is supposedly a country where human rights and the rule of law exist, is a very serious matter indeed. What could be the possible motivation of whoever plants drugs? But this has to be established.
Mauritius Times ePaper Friday 9 September 2022
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