Will our institutions be allowed to function independently?

Mr Satyajit Boolell, who currently holds the post of Director of Public Prosecutions (DPP), has sworn an affidavit on 14th July before the Judge in Chambers regarding a matter of state land which the Independent Commission against Corruption (ICAC) has been intending to investigate him into under section 13 of the Prevention of Corruption Act, i.e., for being in a situation of conflict of interest.

According to the affidavit, Mr Boolell had attended a meeting in 2011 at the Ministry of Lands concerning the rent amount to be charged on a piece of state land leased out to a company called Sun Tan Hotels Pty Ltd while he was acting in his capacity as director of the company to make representations to the Ministry concerning the rent amount. Following the meeting, the affidavit goes on to state that the Ministry took the decision to charge rent in the amount of Rs 45,000 instead of Rs 1,600,000 which is applicable to new leases and that he did not participate in the Ministry’s decision-making process in this regard.

He goes on to state that in his official capacity as Director of Public Prosecutions (DPP), he has no locus in the matter. As DPP, he has no function or duty to grant leases of state land or to fix the rent thereof or to attach any conditions to the land leases. Accordingly, he could not have influenced the Ministry’s decision on the rent amount in his capacity as DPP. Besides, he could not and did not actually exercise any pressure on any public official in the matter.

In the affidavit, Mr Boolell states that as DPP he has advised the prosecution of cases against certain high ranking office holders of the present government, notably against former Minister Pravind Jugnauth for conflict of interest under POCA in the Medpoint case, against Vice Prime Minister and Minister for Housing and Lands S Soodhun for having diffused false news, held an unlawful public gathering and used threatening words at a public gathering and against Prakash Maunthrooa, Senior Adviser at the PMO, for a case involving corruption. He goes on to state that the new Director-General of ICAC would have attempted to persuade him, while the Medpoint case was still going on before the Intermediate Court, not to continue the case against Pravind Jugnauth on the grounds that, in his view, there would be no conflict of interest.

Mr Boolell has therefore submitted to the Judge that there was no reliable and independent evidence to establish any wrongdoing on his part and that the decision to open an enquiry against him was being made for “improper and oblique motives”.

At paragraph 34 of the affidavit, Mr Boolell has stated that a retired judge of the Supreme Court established contact with him on 9th July 2015 on his return from overseas mission requesting him to meet him at the latter’s residence to discuss a “delicate matter”. He states that he did not attend the meeting as he came to know subsequently that the purpose of the meeting would have been to ask him to step down as DPP. He would have stated this the next day (10th July) in so many words to the retired judge whereby, if he stepped down as DPP, the investigation initiated against him by ICAC (concerning an offence that would have committed by him under POCA in the Sun Tan affair) would be discontinued. The same retired judge would have called him again in the afternoon of 10th July to say that the ICAC investigation against him would be discontinued and that he would have to maintain a low profile at the risk “of his undoing”.

According to Mr Boolell, the Director-General of ICAC would have informed him on 10th July that “nothing untoward would happen to him” and that he would only have to send him a letter to give his own version of facts — which he refused to do. The Director-General of ICAC would have also informed him that he was under tremendous pressure, presumably from two Ministers, to proceed with further investigations in the case.

In the light of these developments, Mr Boolell has averred in his affidavit that the real intention of all this would have been to embarrass and undermine his office, make it difficult for him to carry out his functions as DPP and put him under a compulsion to resign.

Mr Boolell goes further in his affidavit to state that in view of the provisions of section 82(1) of POCA, no prosecution under the POCA can be instituted except by and with the consent of the DPP. The DPP can only be investigated therefore by a Tribunal appointed by the President of the Republic under section 93 of the Constitution and not under POCA.

In any event, he has stated that he does not fall under the ambit of POCA in the case proposed to be investigated against him concerning Sun Tan as he was acting in his capacity as a private individual director of a property on lease from the government. Whereas POCA applies to a ‘public official’, which he states he was not when he called at the Ministry some 4 years earlier, the DPP having no locus in the matter of decision regarding the lease of state land or the rent thereof or the conditions attaching to any such lease.

The entire situation is disquieting, whether it relates to digging up a matter dating back to the past to investigate the DPP or casting doubt on a Constitutional post in the judiciary.

It may be recalled that apprehensions were created way back when the new government of 2014 decided to put the Office of the DPP under the Attorney General, thereby giving the latter control over the DPP’s budget. The new situation might well prove tenuous for the DPP to go on appeal to the Privy Council if he decided that an appeal to this our final court of appeal was necessary in a particular case.

Mauritians have always held that it would make a lot of sense to keep the judiciary above the rumble and tumble of politics. It would be highly salutary if the strict line of demarcation between the two estates were maintained at all times to assure the independence of our institutions. But to make assurance double sure, we will need to listen to what all those who have been accused by Mr Boolell of attempting to undermine his office have to say in their counter-affidavits. In the meantime, the judge has ordered that the Respondents, notably ICAC and the Commissioner of Police, to cease investigating the DPP for potential offences against sections 9 and 13(2) of POCA and not to require him to call at the office of ICAC.

Information has filtered out at the time of writing (Thursday morning) that the Ministers alleged to have put pressure on ICAC to pursue its investigation against Mr Boolell, have made a statement to the police against the contents of the affidavit sworn by Mr Boolell. Police have accordingly landed Thursday morning at the residence of Mr Boolell under the strength of what is purported to be a warrant issued by a magistrate. Mr Boolell’s lawyers, Anwar Moollan and Hervé Duval, have also called at his residence in view of this upsetting development, to escort him before the Judge who issued the injunction on 14th July against ICAC and the Commissioner of Police in favour of Mr Boolell. Police would have also landed at the residence of the Director-General of ICAC in the early hours of Thursday morning. No more is known so far on the latter case at the stage. The aim could be to get him and his Director of Investigations to deny their having stated to Mr Boolell that ICAC would be under pressure from the two Ministers to take forward its investigation against Mr Boolell.

All this is most disturbing. No single event has upset the serenity of the country to this extent for a long time now. The people of this country can only hope that our institutions will be allowed to function independently “without fear or favour”.

• Published in print edition on 17 July 2015