“Nothing like a lovers’ spat to get the inside story”

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[Photographer: Rishi Etwaroo]

[Photographer: Rishi Etwaroo]

With the current buzz about a possible chasm in the ranks of government, particularly in light of the open warfare between two ministers, Weekly speaks to lawyer Hervé Duval for his insight into how this bodes for the country both internally and internationally.  As he is also legal adviser to PPS Thierry Henry who was recently involved in a fatal road accident, we take the opportunity to clarify some of the pertinent questions surrounding that incident. 

There is currently a crisis at the highest level of government. The now-minister of foreign affairs, Vishnu Lutchmeenaraidoo swore an affidavit implicating the minister of financial services, Roshi Bhadain and the prime minister himself. Should the latter not rebut those allegations by way of affidavit?
They did not have to file any affidavit in rebuttal because the application which was supported by Mr. Lutchmeenaraidoo’s affidavit, has been set aside. By the time the affidavit became public, there was no case pending. 

What do you think of the allegations themselves?
It is not the first time we’ve heard that the ICAC has been used as a political tool or that there are organised leaks of half-truths in the media with a view to poison the mind of the public. Although these remain very serious allegations, what people are more concerned about is the confidential banking information being leaked to the press, the fact that two ministers are openly at war and on the reaction, or lack thereof, of the prime minister while they are making serious allegations about one another. 

Who do you believe? 
The rare times when I am inclined to believe politicians are when they tell secrets about their supposed friends. Nothing like a lovers’ spat to get the inside story. That a serving minister should make such allegations against a fellow member of cabinet does go some way to vindicate others outside government circles who have been making similar claims. 

Do you mean you believe the allegations Lutchmeenaraidoo is making against Bhadain and against the prime minister?
One would expect the prime minister to seek reassurances from his minister of finance or from other quarters after the issue of the Euro loan became public. I find it hard to believe that Mr. Lutchmeenaraidoo would be so bold as to affirm in his affidavit that the prime minister had the opportunity to satisfy himself that there had been no impropriety, if that was not the case. As regards the allegations against Minister Bhadain, I am more inclined to believe Mr. Lutchmeenaraidoo when he is telling on his colleague, knowing that both of them have proudly participated in the “cleaning up” campaign, than when he is making wild allegations against his political opponents.  

Does that worry you?
I am actually quite happy that these things are coming out from within government ranks. They cannot be dismissed as ramblings of former rulers, or their friends, who have no other defence to offer. That a serving minister should make such allegations is indeed quite novel. One can only hope that he will do everything he can to effectively expose the modus operandi of those he says control the Independent Commission Against Corruption (ICAC) and manipulate the media. I am, on the other hand, worried about the consequences which all this will have on the image of our country and its attractiveness for potential investors. It worries me to hear that Mr. Bhadain will not say anything against Mr. Lutchmeenaraidoo as long as the latter is a minister. If he has any information which could help the ICAC in its investigation then he should speak now. It worries me that the prime minister should deem it fit to issue a communiqué to give the lie to what his minister of finance had affirmed concerning him, and then expects the population to accept that it is business as usual in cabinet. It worries me that the prime minister has not deemed it fit to reassure the public that he will not tolerate any member of his government having recourse to KGB methods or doing anything which could adversely affect the credibility of the ICAC or its efforts to assert its independence.

Is the fact that an accusing minister and an accused one still sit next to one another in cabinet look normal to you?
Let me first say that I do not have a problem with ministers being in disagreement and publicly defending their respective positions on specific issues before cabinet has taken a firm stand on such issues. Having said that, there is nothing normal about the current situation. I do not think it is normal that Mr. Lutchmeenaraidoo continues to serve as minister under a prime minister who tolerates the kind of things he is now denouncing and who publicly accuses him of lying. The normal thing to do would be to resign, at least, as minister. I do not think it is normal that the prime minister should not revoke a minister who he claims has made false averments in an affidavit, even if those averments had not concerned him personally. The prime minister cannot be heard saying that he will wait for the outcome of the inquiry and the decision of the Director of Public Prosecutions (DPP) before deciding whether he will ask Mr. Lutchmeenaraidoo to step down. The prime minister chose to get down into the ring and make a serious charge against Lutchmeenaraidoo. The normal thing to do would be revoke the latter as minister.

The prime minister also said that Thierry Henry had lied but he kept him on as PPS. Is that also wrong?
I am, as you know, Thierry Henry’s lawyer. Mr. Henry never said to the police that his wife was driving the car or that he was not driving the car at the time of the accident. 

Henry’s wife did say she was the one driving the car and since they could not both have been driving it, it is clear that they lied.
I cannot understand how Mr. Henry can be said to have lied to the police on the basis of what his wife has stated to the police. The fact is that Mr. Henry never lied about the fact that he was driving the car at the time of the accident.

This is a lawyer trying to get his client out of trouble, isn’t it? They both lied!
Of course, it is my job to defend my client. I will do it in court, not through the press. But before one affirms that Mr. Henry has lied to the police, one should identify the statement which Mr. Henry has made to the police and which did not reflect the truth. This is not only ethical but good journalistic work. 

“I am concerned that the prime minister should candidly admit that he had discussed these particular cases with the commissioner of police and suggested to him his course of conduct in cases involving members of his government. That does not bode well for the independence of the police.”

From a journalistic point of view, we have identified that Henry has killed an innocent person on the road, that’s unfortunate, but what is unforgivable is the fact that he did not take his full responsibility by admitting that he was responsible for the accident and accepting to take the breathalyser test.
It is tragic that Mr. Stephano André has lost his life in this accident. To date, there is one provisional charge against Mr. Henry and that is “involuntary homicide by imprudence”. A court of law will eventually determine whether Mr. Henry was responsible for that accident. From a journalistic point of view, you may choose to consider that Mr. Henry, because he is a politician, ought to have reacted in a particular way after the accident, that is a different matter. But to say that he killed someone is wrong.

But the person is dead. I can’t bring him back to life. And he would have been alive if he had not been hit by Henry’s car. 
There was an accident and someone died in an accident. Killing has another connotation. There was a fatal accident and Mr. Stephano André’s death is a tragedy. It will be my job as lawyer to defend Mr. Henry before a court of law if he is charged with the involuntary homicide of Mr. André by imprudence. If what you are reproaching Mr. Henry with, from a journalistic point of view, is that he did not at the first opportunity identify himself as the driver to the police, that is something totally different. Mr. Henry has made a statement to the press in that connection. But I cannot let you say that Mr. Henry lied to the police, that he tried to blame it on his wife or that he refused to take the breathalyser test. 

With everything that is going on, what effect will this have on the country?
I said earlier that I was worried for the image of the country and how all this would affect the country’s attractiveness for potential investors. But I would like to see the glass half full. I would like to think that this shows that we have a dynamic democracy where things are being exposed. I would like to see the bright side of it. Of course, it is embarrassing to see what is coming out and the real test will be what happens now. It cannot be business as usual.

When Lutchmeenaraidoo and Raj Dayal talk about the mafia and the KGB, does that comfort you in your positive thinking?
I am hoping that the fact that such allegations, coming from a serving minister and a member of the ruling party, will provoke reactions at all levels. I am hoping that journalists will call Mr. Lutchmeenaraidoo and Dayal to prove their allegations. That they will demand explanations and reassurances from the prime minister. I am hoping that this will provoke a reaction from the ICAC. It is a good sign that it is conducting inquiries on members of the ruling party, whether they are ministers or not. But that will not suffice to change the perception that the ICAC is not independent. I think the ICAC would go a long way to improving the perception relating to its independence by conducting a public hearing, as the law permits, where it is satisfied that there are grounds for a further investigation in such cases.

In general, do you think ministers should step down as soon as there is a prima facie case against them?
Who is to decide whether there is a prima facie case or not? Should someone step down as soon as there is a provisional charge? Probably, if it was the case that provisional charges are only levelled when there is a reasonable suspicion that someone has committed an offence. But we know that often times, all it takes is an allegation. 

“That a serving minister should make such allegations against a fellow member of cabinet does go some way to vindicate others outside government circles who have been making similar claims.”  “It is embarrassing to see what is coming out and the real test will be what happens now. It cannot be business as usual.”

What about a formal charge?
A formal charge should not be equated with guilt. But yes, one must assume that a formal charge is not levelled as easily as a provisional charge and that if there is enough evidence to warrant a formal charge involving dishonesty, then I would expect a minister to step down to clear his name. 

The prime minister stated in parliament that because there have been too many complaints about provisional charges, he instructed the police commissioner not to arrest Dayal and Lutchmeenaraidoo on provisional charges. Does that mean that this is the beginning of the end of this terrible practice or is it selective?
Well, since I want to see the glass half full, let’s hope that this is the start of a new era where a mere allegation will not necessarily result in an arrest and a provisional charge and that this new practice will apply indiscriminately to every citizen who comes under suspicion following an allegation. Time will tell. I am, however, concerned that the prime minister should candidly admit that he had discussed these particular cases with the commissioner of police and suggested to him his course of conduct in cases involving members of his government. That does not bode well for the independence of the police.

You must have come across the news in Weekly that the newly-recruited director of the Integrity Reporting Agency seems to be in Bhadain’s circle. What is your take on that?
I read your editorial. I do not think that the mere fact that this gentleman has worked in the same company as Bhadain disqualifies him. Having said that, given the controversy there has been around this agency and the fears expressed that it could be used as a political arm and the fact that we were given assurances that all appointments would be above board, I would have thought that those making the appointment would ensure that the chosen candidate does not have any link past or present with those in power. They should have known that good journalists would dig and find the connection. It is a matter of great regret that there should be any kind of controversy around the director of the Independent Reporting Agency’s appointment. 

Would you like to comment on the 2015 Country Reports on Human Rights Practices which has just come out?
It could have been much worse. I think the content of this report is a good indication of what kind of events will make foreign observers and potential investors nervous.

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