Let institution-bashing stop and let the DPP and ICAC carry on with their respective duties 

MCB Mega Scandal

By S. Modeliar

Following the judgment of the Commercial Court ordering Mr Robert Lesage and Mr Teeren Appasamy to pay over Rs 900 million to the Mauritius Commercial Bank (MCB), the Leader of the Opposition stated during the PNQ in Parliament on 6 July 2010: When the Prime Minister announced that a Commission of Inquiry would be set up, Mr Bérenger said: “Whenever we propose a Commission of Inquiry — it has happened half a dozen times recentlycomme par magie, we are going to have, in due course, a Commission of Inquiry when the Supreme Court last Wednesday has already found the guilty parties.” He also resents the fact that ICAC granted immunity to Robert Lesage.

— every time the Prime Minister says: no, because we cannot act criminally – no one can be sued criminally on the basis – it would not be right to set up a Commission of Inquiry because the Police would have to restart the whole inquiry and so on and so forth. But, in this case,

“Does not the Hon Prime Minister find it extraordinary that the MCB comes forward, makes complaints of fraudulent behaviour against Mr Robert Lesage and, at the end of the day, it is the ICAC which decides to bring the MCB before the court? Does not he find that extraordinary?

Paul Bérenger is wrong when he clamours that the Commercial Court found the parties guilty. What the Court found was that Robert Lesage and Teeren Appasamy were civilly liable to pay a colossal amount to the MCB. This was a purely civil, not a criminal, case. He also expressed the view that the judgment of the Commercial Court is proof of the guilt of ICAC on the issue of immunity. That too is not entirely correct.

Under section 50 (1) (a) of the Prevention of Corruption Act (POCA), the Commissioner of the Independent Commission on Corruption (Commission) has the power to “(a) order any person to attend before him for the purpose of being examined orally in relation to any matter; and (b) order any person to produce before him any book, document, record or article”. Investigations by ICAC cover corruption and money laundering. These are complex investigations and investigators have to tread carefully. Such offences also invariably have international ramifications.

It is not always easy to secure evidence against suspects. On the other hand, such offences are perpetrated by more than one person acting in complicity with one another. The POCA affords protection to a person in regard to incriminating questions under section 50(3) that reads: “A person may refuse to answer a question put to him or refuse to furnish information, documents, records or statements where the answer to the question or the production of the document or class of documents might tend to incriminate him.”

It is a fundamental principle of human rights that no person should be compelled to incriminate himself. If this principle were to be followed strictly and without any exception, then it would become virtually impossible to prosecute anyone for corruption or money laundering because more often than not the evidence of accomplices is needed. This is why the Commissioner of ICAC has the power to give, after consultation with the Director of Public Prosecutions, “an undertaking in writing to a person that any answer given or document or class of document produced will not be used in evidence in any criminal proceedings against him for an offence other than proceedings for perjury” under section 50(4) of the POCA. Should it be recalled that the POCA is a law that was devised and voted by the MMM in 2002 after the demise of the Economic Crime Office?

Paul Bérenger has expressed dissatisfaction with the way that the State Law Office has handled the issue. It is not clear in that statement whether he was referring to the Director of Public Prosecutions (DPP). It should also be emphasized that the Commissioner cannot give an undertaking to a person being questioned on incriminating questions without consulting the DPP. The DPP in 2004 must have had good reasons to agree to the undertaking. The subsequent decision to file information against the MCB for money laundering has confirmed that stand taken in 2004.

Paul Bérenger finds it strange that the MCB is being prosecuted and alleges that ICAC is taking the MCB to court. ICAC can only suggest what course of action should be taken, and it is for the DPP in the exercise of his powers under section 72 of the Constitution to take the ultimate decision to prosecute or not. And, in the exercise of that power, he is answerable to no one. It should be pointed out that the police also regularly suggest a course of action to the DPP. The DPP is not bound by any suggestion for that matter.

Maybe it is salutary to recall that the same DPP who agreed to an undertaking to be given to Robert Lesage ordered no further action against Cehl Meeah for reasons best known to himself and no one could do anything about it in spite of the furor that the decision generated at the time and the promise of the then MMM-MSM government to review the powers of the DPP.

Immunity is a device that is commonly used in investigations and prosecutions. There is nothing sinister or illegal in that practice. The investigation or prosecution authorities have discretion to grant witnesses immunity from prosecution for the use of their testimony in court. The rationale is that very often, given the specificity and nature of some crimes, the evidence of one witness is so vital for the successful outcome of an investigation or prosecution that it is better to allow that witness to go unpunished if a greater goal can be achieved.

For example, the testimony of somebody who brings drugs into Mauritius mat be extremely valuable to help destroy an entire illegal drug-trafficking network and that would be more in the public interest than in the prosecution of one lone drug trafficker. Of course there is always the risk that the witness under immunity may commit perjury and be prosecuted for such an offence. That may not be a consolation either for the DPP or society.

In some jurisdictions the law is such that if a witness goes back on his undertaking, he may be prosecuted for the offence for which he was given immunity. This is a matter that should beckon the authorities and the Leader of the Opposition who should not be wasting his time and damaging his image in trying to defend the MCB the way he is doing.

Let institution-bashing stop and let the DPP and ICAC carry on with their respective duties.

* Published in print edition on 16 July 2010