By resigning from the government to take over the role of Leader of the Opposition and taking the government to court to declare the seat of Sir Anerood Jugnauth vacant because SAJ resigned as Prime Minister and not as a MP and was replaced by his son Pravind Jugnauth, Xavier-Luc Duval (XLD) may lead many to believe he was defending so-called democratic principles. But, in fact, he is grossly misleading the people.
The British who last conquered Mauritius from the French in 1810 brought their First Past the Post (FPTP) democratic political system based on the Westminster model. Given Mauritius' diverse peoples, as a supplement to FPTP, the Best Loser System (BLS) was added to ensure minority representation in the Mauritian Parliament, called the Legislative Assembly. Like in Britain, Mauritian voters do not elect a Prime Minister. Voters vote for candidates belonging to political parties (except where the candidate presents himself/herself as an Independent) in the expectation that the leader of the largest elected party which forms the government becomes Prime Minister for five years, unless the PM dies, is taken ill, resigns, or does not survive a vote of "no confidence", in which case he is replaced by another MP in government as long as that MP commands the confidence of a majority of MPs.
SAJ resigns as PM and as MP in 2003
Sir Anerood Jugnauth (SAJ), then leader of the MSM, became President of the Republic of Mauritius in 2003 as a result of a power-sharing deal with Paul Bérenger of the MMM, a deal struck in 2000 when they formed the MSM/MMM Alliance and won the elections with SAJ as PM for the first three years. Even though there was no law which forced SAJ to resign as PM and as an MP in 2003 to make way for Paul Bérenger, SAJ kept his word - «Parole donnée parole sacrée». This arrangement is quite compatible with Mauritian and many other democracies. The government MPs agreed with this. No one then challenged in court either SAJ's resignation or Paul Bérenger as PM.
Although the MSM lost the elections in 2005 to the Parti travailliste (PTr) led by Navin Ramgoolam, son of former PM Sir Seewoosagur Ramgoolam who took Mauritius through independence, Navin Ramgoolam renewed SAJ's presidential mandate in 2008. But SAJ resigned as President in 2012 after his son Pravind Jugnauth (leader of the MSM), who was Finance Minister in the government of Navin Ramgoolam (PTr) in a PTr/MSM/PMSD alliance, was arrested in connection with corruption charges with respect to the purchase of MedPoint Clinic (MedPoint Ltd) belonging to the Jugnauth family, decision to purchase having been taken by Cabinet presided by then PM Navin Ramgoolam in the absence of Pravind Jugnauth who did not take part in the Cabinet proceedings because of conflict of interests. But as Finance Minister, he did implement the Cabinet decision in its choice of MedPoint, for which he was prosecuted for conflict of interests under the Prevention of Corruption Act (PoCA). The MSM then resigned from government.
SAJ, who was then 82 years old (in 2012), threw himself in opposition politics in an attempt to «save the country» from what he saw as a corrupt PTr/PMSD government, leading the country into an abyss. SAJ agreed an alliance with Opposition leader Paul Bérenger of the MMM, but, behind SAJ's back, Bérenger, in the weeks coming up to the December 2014 general elections, struck a deal with the then PM Ramgoolam in which Ramgoolam would become President with immunity for 7 years with Bérenger as PM should the PTr/MMM newly formed alliance be elected. XLD who was in Ramgoolam's government was left out in the cold. XLD had no choice other than split from Ramgoolam, which he rightly did.
Just like XLD (PMSD) felt betrayed by Ramgoolam (PTr), so did SAJ (MSM) feel betrayed by Paul Bérenger (MMM), hence Pravind Jugnauth's famous saying that the 2014 alliance between Ramgoolam and Bérenger was one between «un jouisseur et un traître». With very good reasons, XLD allied with the MSM. The MMM split with Ivan Collendavelloo leading the Mouvement Libérateur (ML), also allied with the MSM with Pravind Jugnauth as leader and SAJ as leader of the MSM/PMSD/ML Alliance. They formed an unbeatable force and Mauritians voted for change in December 2014, with the PTr ending up with a meagre four MPs. Ramgoolam himself failed to get elected. The new MSM/PMSD/ML government inherited a mess never inherited by any previous government at all levels, and the solidarity of XLD and Collendavelloo was essential to bring the necessary changes, even at constitutional level.
After the MSM/XLD/ML Alliance won the December 2014 general elections, the Police almost immediately started their investigations and Ramgoolam was arrested with around an alleged undeclared Rs220m, including US$ 5 million in 100$ unused bills, found in his home. Even FBI agents had to be called in to assist in investigations regarding the source of the millions of US$. Ramgoolam opted for his right to silence and he is presently facing Police provisional charge for money laundering subject to indictment by the DPP.
On the other hand, Pravind Jugnauth, who faced charges of conflict of interests in the MedPoint case, was found guilty in 2015 by Magistrates, who were of opinion that the PoCA created an offence of strict liability, and sentenced him to 12 months imprisonment. But this decision was reversed by the Supreme Court in May 2016 as Pravind Jugnauth was found to have acted in good faith and, rejecting the Magistrates finding of strict liability, found that Pravind did not have a guilty mind when he implemented Cabinet decision in its choice of MedPoint, and the distinction between Pravind's personal interests and the corporate interests of MedPoint Ltd was also made. One would have thought that once Cabinet has chosen MedPoint in the absence of Pravind Jugnauth, conflict of interests cannot arise in the implementation of that choice by Finance Minister Pravind Judnauth as he cannot be said to have favoured MedPoint. However, the DPP is seeking leave to appeal to the Privy Council given that this is a matter of public interest.
«Prosecution Commission» - XLD and his PMSD party resign from Government
The government has been unhappy with the systemic delay in the Administration of Justice and decided to create a «Prosecution Commission» so justice is better served. Barrister and government MP Ravi Rutnah accepts that one of the reasons taken into account is the fact that the DPP decided to strike out several provisional Police charges (10 out of 11) against former PM Navin Ramgoolam. Also refer to the article published in London-based Mauritius News of 6 December 2016 : [«Money laundering - one provisional charge left against Navin Ramgoolam» ].
At the «Evidential Stage», «Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction.» [Ref. «Code for Crown Prosecutors»].
It appears that the 10 provisional charges were struck out because the DPP felt there was no realistic prospect of conviction for each charge. In so doing, the DPP would have considered «what the defence case may be». But Ramgoolam opted for his «right to remain silent», which implies that the DPP could not have had access to the defence. Does this mean that if a suspect elects for his right to remain silent, he is exonerated without being tried for the offence, however serious it may be? Hence, it also seems that the DPP could not have considered the next «Public Interest Stage», such as the «seriousness» of the offence, since the charges would have been striken out at the Evidential Stage. It remains to be seen what decision will be taken in the 11th Police provisional charge of money laundering regarding the 'cache' of hundreds of millions, including unused US$ bills, found in Ramgoolam's home, Ramgoolam having again opted for his right to remain silent.
The «Prosecution Commission» is designed to unclog the Administration of Justice and to make the DPP more accountable, something the legislators are entitled to do. But XLD expressed reservations regarding a 36-month retroactive clause, and resigned from government on Monday 19th December 2016 and took all the 11 PMSD MPs to the Opposition Bench, hence assuming the post of Leader of the Opposition, replacing Paul Bérenger of the MMM which had only 6 MPs. In so doing, XLD torpedoed the creation of the «Prosecution Commission» as the government fell short of the 75% majority needed to amend the Constitution.
An «Independent DPP» does not mean an «Unaccountable DPP»
Per the Constitution, the DPP is guaranteed independence in the discharge of his duties. It would be wrong for the Executive to interfere with this independence. But the DPP is accountable to Parliament via the Attorney General who is an MP. In the UK, the guidelines are : “The Attorney General will be kept informed of certain cases as part of his or her superintendence of the Crown Prosecution Service (CPS) and accountability to Parliament for its actions.” The DPP's decision can also be subject to Judicial Review, which is a very long process, hence the proposed creation of the « Prosecution Commission». Hence, an «Independent DPP» does not mean an «Unaccountable DPP». But very many people are wondering why XLD acted the way he did because the creation of a «Prosecution Commission» is deemed to be in the public interest. Very many people are also asking why only Ramgoolam was investigated but not XLD because he was Ramgoolam's ally in the previous government. Could this be the reason why XLD did not want to support the «Prosecution Commission»?
SAJ resigns as PM but not as MP
From the beginning, it was well known that, given his age, SAJ would be unable to complete his five years as PM and that he would be replaced by Pravind Jugnauth, who happens to be his son. Both XLD of the PMSD and Ivan Collendavelloo of the ML were well aware of this, and the government MPs were agreeable to this choice. On 23 January 2017, 86-year-old SAJ resigned as PM (but not as an MP) in favour of a «younger and more dynamic leader» in the name of his son Pravind Jugnauth (then Finance Minister) who the President named as PM since he is the leader of the MSM and commanded the confidence of the majority of MPs. XLD did not put himself forward as a contender to Pravind Jugnauth.
While, in a press conference, XLD argued that his resignation from government to take over the role of Leader of the opposition is within the democratic system we are in, he fails to see that, similarly, a PM too can resign within his mandate without resigning as an MP and be replaced by another PM, whether related or not, as long as the new PM enjoys the confidence of the majority of MPs. Theresa May replaced David Cameron as PM in the UK after the latter resigned both as PM and as an MP in the aftermath of the Brexit Referendum. David Cameron did not want to stay on as a backbencher.
XLD stabs his electorate in the back
XLD is seen as having not only stabbed the government in the back but also his own electorate who voted the PMSD for government business. XLD has betrayed his electorate. There was no proper and pressing reasons for him to leave government the way he did. He knew that the MSM/PMSD/ML alliance has an important job to do and that, at some point, this would entail changes to the statutory laws and the Constitution. Remember, Mauritians never voted for the Constitution in a referendum by a majority of 75%. Yet when changes are necessary, this '75% parliamentary majority' is imposed. Lebanon is having the same problem to amend its badly drafted and imposed Constitution (by the French) without a referendum of the Lebanese people. Mauritians should amend the Constitution wherever necessary. The problem is that many MPs tend to pursue their own interests before the interests of the people. Perhaps, the creation of the «Prosecution Commission» should be put to the people in a referendum.
XLD and the other 10 PMSD MPs resigned from government to lead the Opposition, but this is not what their electorate voted them for. Yet, XLD has the audacity to complain that "Il y a un rapprochement entre le MMM et le MSM". Why not a rapprochement between XLD and Ramgoolam like old times? If there is indeed a rapprochement between the MMM and the MSM, however much Bérenger may deny it, it is of XLD's own making as Bérenger cannot 'serve' XLD in opposition. Whatever the twists and turns of Bérenger over decades, any pragmatist would argue that Bérenger would better serve the country if he were to take the MMM into government and implement government's important decisions.