‘The Mauritian judiciary may not be as blameless as it appears to be’

Interview – Me Sonah Ruchpaul

Grand Bassin Affair:

‘The public cannot “presume” anyone guilty. This can be done only by a court’

* ‘One scandal in this country is pushing the other out. This is because we are in same carousel as Panama’

Me Ruchpaul has practised at the Mauritian Bar for nearly 40 years, and has been adviser to trade unions as well as been Chairman of the Industrial relations Commission. In this interview he shares his thoughts about the current spate of corruptive practices that are headlining in the media. He also comments on the stand taken by the Prime Minister on the judiciary, on the weaknesses and failings of ICAC, and on the prevailing perception that the judiciary is no longer as robust a bulwark against injustice as before. 

Mauritius Times: It would seem the investigations of the Independent Commission Against Corruption (ICAC) into the Franklin affair have taken a back seat, with the latest affair that has cropped up concerning corruption money which would have been traded for the renewal of a lease of some 250 hectares of forest lands in the vicinity of Grand Bassin. This new affair allegedly involves a senior minister, a Parliamentary Private Secretary (PPS) and a high-level civil servant. How do you react to what appears to be a new chain of scandals hitting the current government?

Sonah Ruchpaul: Since decades, this country is Noriega territory. You will remember the chubby Panamanian monster, ally and partner in crime of Uncle Sam who epitomised circular, that is, interminable corruption in Central America until the 1980s, when even the CIA got so embarrassed by his power inside his own state and his tentacles around the neck of his neighbours that it organised his downfall by a military coup.

Noriega was tried on US soil and sentenced to 40 years’ imprisonment for murder, drug-trafficking and numerous sex offences including rape, committed while he was an ally and logistics supplier of the United States.

The nightmare for Panama could have ended there, with the reduction of sentence (23 years!) granted to him by good old Ronald Reagan in the early 1990s, but his legacy still plagues Panama.

As you said, one scandal in this country is pushing the other out. This is because, ‘ceteris paribus’ (all things being equal), we are in same carousel as Panama. The chain cannot and will not end until some effect occurs which is exogenous, that is, entirely extraneous to our political, social and economic system…

* Like what?

Like a Mauritian Spring.

Do you remember the young man who set fire to himself in Tunis because, despite all his qualifications, he couldn’t find a job to feed his family? All the jobs in Tunisia had been appropriated by one or other of Ben Ali’s extended families. It’s roughly the same situation at present here. I am not pinpointing anyone. I believe people from all walks of life ‘là-haut’are maintaining their upper hand on everything they can get hold of.

When the planet was hit by Covid-19, l thought the plague, similar to the one in the 1600s which nearly deprived us of the Bard of Stratford-upon-Avon, was an act of God meant to punish mankind for its sins, aggravated by its refusal to repent. I therefore read anew ‘Romeo and Juliet’ and ‘Macbeth’, which I had taught to SC pupils in the late 60s before leaving for England, the first to find out if there could be in the Covid curse something that could be, albeit remotely, of any use to us, the second to find out if someone somewhere ‘là-haut’, particularly the lady commonly called Lady Macbeth, had ever heard of Duncan’s walking forest.

Mind you, I do not advocate any violence in our streets, or any defiance to the law. Like the Cardinal, I am expressing my feelings, leaving the rest to ‘là-haut’, le vrai, l’eternel ‘là-haut’!

* It seems the general public already presume that the politicians and others allegedly involved in the affair are guilty. Do you think there is sufficient incriminating evidence against them? Or would you treat the complaints against them as mere allegations?

The public cannot “presume” anyone guilty. This can be done only by a court authorised by law to do so, although I would concede that the ‘citoyen lambda’ or the man in the Clapham omnibus could, in the present circumstances, feel that the senior minister has something to answer for. (Ed. – The man on the Clapham omnibus is a hypothetical ordinary and reasonable person, used by the courts in English law where it is necessary to decide whether a party has acted as a reasonable person would.)

No one would have had any difficulty to identify the minister as the minister in charge of Agriculture, as he is the cabinet member responsible for agricultural lands, in Ganga Talao or elsewhere. However, whatever he answers, now or whenever, he is entitled to be presumed innocent until proven guilty.

In fact, Maneesh Gobin has already been quizzed in Parliament by the Leader of the Opposition. To any reasonable man, he looked embarrassed and, on his Party’s own MBC-TV appeared to be mumbling words which didn’t attract approval from even the government benches. I find it strange that no one in the House asked Maneesh Gobin whether the PM insisted that he be personally present to answer the questions put to him.

* In any case the ball is squarely in the court of ICAC, which, I suppose, will prove or disprove the cases that have been made against them. That could be a tall order for the anti-corruption agency, isn’t it, just like it proved to be the case as regards the St Louis affair?

Yes, you are asking about the St Louis affair in reference to the grievances caused in the alliance MSM-Collendavelloo. But it would seem to me – unless I am mistaken – that Ivan has not been seen in the House for quite some time.

As to ICAC, my views on it under all governments since its inception will take dozens of pages to be fairly expressed. Suffice it to say that its story is not Shakespearean in the sense ‘All’s Well That Ends Well’. It was concocted in “unseemly haste” by what became known later as the Medpoint alliance between the MSM and the MMM, two alleged partners who were already feuding as to who of the two would have the ultimate control of the new institution.

The hassle was largely due to the fact that new allies wanted to get rid as soon as possible of Indira Manrakhan, a Ramgoolam appointee at the Economic Crime Office (ECO), who had two ministers of the new allies under investigation and was nearly arresting them. A Select Committee of the House chaired by Collendavelloo was hurriedly appointed to produce a report together with draft legislation in view of the setting up of ICAC. The draft was painfully delivered by the Committee after a few sleepless nights of keying on the computer belonging to one lady-lawyer, a stranger to the House, according to my learned friend John Doe, who in an interview ‘à quatre volets’ in Le Défi Plusexposed the flaws of the report and the draft.

I am speaking from memory, which can fail me on some details, but you will remember that the Prevention of Corruption Act (PoCA), the parent law of ICAC, received its first, second and third readings in two days. Anerood Jugnauth was later to tell me that he himself had not read the report or the draft legislation before they were voted into law.

As to Navin Beekarry, he had not had a substantial practice at the Mauritian bar when he was appointed Director-General (DG) of ICAC. And to cushion the hot seat against any ejection, Pravind Jugnauth’s father appointed Maneesh Gobin as ICAC’s Chief Legal Adviser! Deven T surely cartooned the poor Beekarry being pulled apart by Bérenger and his PM!

* Given the fact that the minister has identified himself, and elections may be approaching, do you expect Pravind Jugnauth to be bolder and even more ‘tranchant’ in these particular circumstances?

I don’t think PKJ could be emboldened by this situation. His kitchen’s cooks and sub-cooks must have told him that 2019 cannot be repeated with or without the MSM’s billions, with or without hundreds of Bangladeshis voting illegally in designated constituencies. Day after day, his closest advisers must be telling him that the abusive use of the MBC is boring his own people to death.

In my view, being more ‘tranchant’ against defaulters inside his Party will not raise him above the fray but may produce the opposite effect, that of galvanising the defaulters against him internally.

Anerood Jugnauth went through the same tremor twice. The first time in April 1983 when he called a general election after the MMM-PSM break-up, the second in 1995 after the official formation of the alliance between the Mauritius Labour Party (MLP) and the MMM. This is the time when stalwarts of the Party abandon the wreck and join the erstwhile enemy.

* The Prime Minister had earlier been taken to task for his attack against the judiciary and the ODPP. The Roman Catholic Church has also joined in that condemnation. That was in connection with the bail application of Bruneau Laurette. What message do you think the judiciary could have read into that attack, and do you expect it to act upon it now that two of the PM’s junior associates in government have been targeted?

PKJ, whom I have known as a barrister since his call to the Mauritian bar in 1987, has been absolutely misguided in calling the judgment of the magistrate who granted conditional bail ‘bancal’. Worse indeed, he used this word several times on MBC and in front of partisan audiences. I don’t know if PKJ consulted his A-G before he made the speech. Someone in the House should put the question to the PM, if the opportunity arises.

However, the Mauritian judiciary may not be as blameless as it appears to be. In fact, the media prior to and after Independence have always revered their judiciary, but I doubt if the judiciary itself has done anything to show that it deserves such glorification.

In his bestseller ‘The Judges’, the Australian journalist Robert Thomson explained how, back in the 1970s, the Conservative Party leader Sir Robert Menzies corrupted a good number of Australian Supreme Court judges by offering them juicy commission of inquiry sittings. Each one got used to the offers and geared his pen to the next! There are times when a similar situation seems to prevail here.

On the other hand, the Cardinal of the Roman Catholic Church has now joined issue with the people of Mauritius irrespective of their communal appurtenance. PKJ, whom I have known as an intelligent counsel ever since he came to see me in my Chambers at the request of his father, ought to have expected this, given the censorship applied to his previous speeches by the MBC. I believe the people of Mauritius are in communion with the Cardinal in his reaction.

PKJ, if he had been properly advised, ought to have known that this is not the only statement the Cardinal has made which can reasonably be interpreted as political. Do you remember his statement, days after Ramgoolam had lost to the Medpoint alliance in 2000? No one in the new government complained of this intrusion in the political arena.

* To come back to Navin Ramgoolam statement on TelePlus about a Supreme Court judge going over to a minister’s office for a meeting, one would expect a senior politician like him to go beyond hints and innuendos and take this matter to its logical conclusion. What should he be doing about it in that case?

I don’t know if Navin Ramgoolam made the same statement on the other so-called independent radios. I am surprised Radio Plusallowed the statement to go on air and didn’t use their delayed broadcast option. Many Mauritian journalists, untrained in the law, would say to the intervener “guette bien, ou qui pe dire ça, oupranouresponsabilité!”

In the meantime the impugned statement has gone through and the radio has published it. In law, if the author of an impugned statement vanishes after making it, the publisher is trapped, leave alone the powers of the Independent Broadcasting Authority (IBA) amended recently by the present government, which connect to the radio’s broadcasting rights.

* A rather novel issue in the affairs of the judiciary relates to the exams, to be followed by interviews, that prospective judges have to sit to be able to make it to the bench of judges. Does that look like an improvement on what prevailed earlier as regards the appointment of judges?

Ah! This could be another ‘trompe l’œil’! I fear the Greeks even when they bring gifts (Timeo Danaos et donaferentes).

I myself have just outlined the numerous problems of our judiciary. But dealing with the problems is much more complex than what is being dangled. As you know, seniority has not given us the judges we need.

It is obvious that a number of the possible appointees have reached their intellectual limits. But one or two fare better than the others, given their judgements which may not have pleased the present government.

* Now, if judges will henceforth be appointed on the basis of exams, even if it’s allowed in law, what about the appointment of top judicial posts – the Master and Registrar, the Senior Puisne Judge or even the Chief Justice – and the DPP?

You know we inherited the rule relating to the Prime Minister’s approval from England, where the Chief Justice of the High Court is appointed by the PM. Over there, the High Court is not connected in a pyramidal hierarchy with the appeal courts, that is, the Court of Appeal and the House of Lords or the Privy Council where any of these are relevant.

In this country, Lord Mackay’s report, which emphasised the incestuous relations which existed between the Supreme Court sitting as a court of first instance and the appeal courts, with the CJ overseeing all nominations and daily appointments in the whole system, has only partly been implemented.

* To date, we have not heard the Opposition voicing an opinion on such an important matter as the appointment of judges. Do you think they should prioritise this over all other matters?

Certainly not. We must take time before we leap in the dark.

* The Opposition say they are busy working on a memorandum for submission to the Electoral Commission (EC) in connection with the organisation of the next general election. They seem to have wrested an undertaking from the EC concerning the running or not of computer rooms during old-fashioned ballot-counting. To what extent you think this will improve matters and create the conditions for free and fair election?

We need counting on the same day. The Opposition simply has to ensure the Electoral Commissioner sticks to his undertaking.

Mauritius Times ePaper Friday 14 April 2023

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