Publicité

The Privy Council hearing and the Prevention of Corruption Act

23 janvier 2019, 15:58

Par

Partager cet article

Facebook X WhatsApp

The Privy Council hearing and the Prevention of Corruption Act

This analysis is not a criticism against our judiciary. It is in fact an urgent need for all of us, as decent law-abiding citizens to know the exact and true definition of Section 13(2) of the Prevention of Corruption Act (PoCA). Since the verdict of the Supreme Court in the MedPoint saga, there are lots of controversies on the issue of “conflict of interest and personal interest” under Section 13 (2) of the PoCA. Is there an ambiguity in this section of the Act and does it need reviewing?

Both the Supreme Court and the Intermediate Court have a different interpretation of Section 13(2) of the PoCA. There have been even two schools of thought among lawyers on this. This has led to a great confusion where no one knows where he stands if ever he is accused under section 13(2). In that case, it is wise and proper for the Director of Public Prosecutions (DPP) to have appealed to the Privy Council against the verdict of the Supreme Court? This is the only way all law-abiding citizens will know what exactly is section 13 (2) where the Law Lords of the Privy Council will define transparently and vividly that section.

Another aspect of the verdict of the Supreme Court is the loophole it will cause for previous offenders who have been condemned under Section 13(2). It means that all those who have been condemned previously could find a way out by applying the verdict of the Supreme Court as a stated case? But that was not the case!

The Intermediate Court took note of the fact that there is no evidence of corruption in that case, that the decision to reallocate funds was taken at the very last stage of the process of acquisition of MedPoint, that Mr Pravind Jugnauth has a clean record. But according to the Intermediate Court he could have delegated his power to sign to the Financial Secretary.

Conflict of interest

The Intermediate Court felt at that time that it has a duty to apply section 13 (2) of the PoCA to convict anyone contravening such a section. Notwithstanding that the offence is listed under PoCA, it is nevertheless not a corruption offence and the word “corruption” was removed and omitted in the formal charge by the Court. Even the Court agrees that conflict of interest is not the same as corruption.

Here is an extract of the already published version of the Intermediate Court Judgement of Pravind Jugnauth Case by the Magistrates: “At the outset, we need to emphasise the fact that although this offence is listed under the PoCA, it is nevertheless not a corruption per se. In fact, as per OECD (2005) - Conflict of Interest Policies & Practices in Nine EU Member States, A Comparative Review, SIGMA Papers No 36, OECD Publishing - conflict of interest is not the same as corruption.

Both the representatives of the DPP and of Pravind Jugnauth made their case heard before the five Law Lords of the Privy Council, on Tuesday 15 January, in London.

It is pertinent to note the following extract from the above OECD document: “Sometimes there is conflict of interest where there is no corruption and vice versa. For example a public official involved in making a decision in which he has a private capacity interest may act fairly and according to the law, and consequently there is no corruption involved. Thus, it cannot be clearer thata case of conflict of interest may not also be a case of corruption.”

The whole objective of this article is to make our legislators to reflect on the ambiguity that exists in the law of PoCA as it caters (1) of the offence corruption and (2) of the offence conflict of interest. In the same manner as such a section 13 (2) is twofold as first there is an accusation of corruption in it as well as secondly an accusation of breach of public duty. Such an ambiguity could result as loopholes precedence in that section of the law of PoCA.

No wonder why the Magistrates at the Intermediate Court opted for only one charge of the two charges to clear such ambiguity.

This is what Section 13 (2) of the Prevention of Corruption Act stipulates:

Where (a) public body in which a public official is a member, director or employer proposes to deal with a company, partnership or other undertaking in which that public official or a relative or associate of his has a direct or indirect interest and (b) that public official and/or his relative or associate hold more than 10% of the total issued share capital or of the total.

Where a public official or a relative or associate of his has a personal interest in a decision which a public body is to take, that public official shall not vote or take part in any proceeds of that public body relating to such decision.

• Any public official who contravenes sub section (1) or (2) shall commit an offence and shall be liable to a penal servitude for a term not exceeding 10 years.

In his analysis on “mens rea” published in The Asian Times of 17/1/19, Ahmad Macky wrote that ‘mens rea is derived from the legal axiom Actus non facit reum nisi mens sit rea, which means to say that the act does not constitute guilt unless done with guilty intent (mens rea)’. He reckons that the Law Lords will have to decide whether or not there has been criminal intent or “mens rea” by the accused as according to him the mental element of the accused was absent. So Ahmad Macky concluded in his analysis that Pravind Jugnauth has no case against him and he will be cleared.

Contrary to Macky’s analysis, I fear that the Law Lords who took part at the sitting of the Privy Council of Tuesday 15th January 2019 will come to the same conclusion of the Intermediate Court of Mauritius, which has condemned Pravind Jugnauth to 12 months imprisonment. This is not a prediction but a fact in law!