Le Jugement de La Cour Intermédiaire Contre Pravind Jugnauth

8/20/2019 Le Jugement de La Cour Intermédiaire Contre Pravind Jugnauth

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ICAC v P.K Jugnauth

2015 INT 210

IN THE INTERMEDIATE COURT OF MAURITIUS(Criminal Division)

In the matter of : C!No! "#$%"&'

Ine*enent Commission A+ainst Corr,*tion -.ICAC/0

v

1ravin 2,mar 3U4NAUTH3 U D 4 M E N T

Accused stands charged for having on 23 December 2010 “…whilst being

then a public official whose relative had a personal interest in a decision which a

public body had to take …. took part in the proceedings of that public body

relating to such decision …” in breach of section 13(2) &(3) Prevention of

Corrution Act ! hereinafter referred to as “P"CA# or “the Act#$ as amended b%

section (b) of Act 'o1200*

After a +ea in bar, Accused +eaded Not 4,ilt5 and -as assisted at .ria+

stage b% /rChett% C, /ru+bu+, /r Da-reea-oo and /samdharr%

.he Prosecution -as +ed b% /r oburdhun -ho aeared together -ith

/r oochand

As er Particu+ars of information, Accused had been acting in his caacit%

as 4ice Prime /inister and /inister of the /inistr% of 5inance and 6conomic

Deve+oment ! hereinafter referred to as “MOFED” & /"56D is a+so referred to

as /inistr% of 5inance and 6conomic 6mo-erment !“MOFEE” $ $ -hen he “ ….approved the re allocation of funds aounting to !s."##$%&"$'&&.( to pay Med(

point )td * in which copany +ccused,s sister$ Mrs Malhotra held -$/-' shares

out of '-$-'.”

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8e have du+% considered a++ the evidence on record as -e++ as the -ritten

and ora+ submissions from both arties together -ith the authorities submitted

9efore the Court embar:s on consideration of the evidence on record, the

mooted issue of -hether there has been an ,nfair en7,ir5 in this matter -i++ be

first considered .his ;uestion needs to be addressed at the outset since there

has been substantive submissions from the Defence on this issue as -e++ as in

the +ight of the fo++o-ing e


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5he )earned ;udge in the case of Velvindron also cited the following cases

which deal with the issue of a stay of proceedings on the ground of abuse of

process *

45n 6.7.7. v. )ussain, The Times #une $ $%%$ the 4ourt reiterated the

e6ceptional nature of an order staying proceedings on the ground of abuse of process and stated that such an order should never be ade where there were

other ways of achieving a fair hearing of the case$ still less where there was no

evidence of pre1udice to the defendant.

Further$ in deterining abuse of process$ the 4ourt in (. v. 6erby Crown

Court e8 p. 9rooks [$%-2 -! Cr. /pp. (. 7. $:& $ after 8uoting with approval

the stateent of )ord Diplock in Sang [$%1% /0( $ p. $"!& pointed out

that 4the ultimate ob;ective of this discretionary power is to ensure that

there should be a fair trial according to law, which involves fairness both tothe defendant and the prosecution.”

• Has the En7,ir5 9een hanle so Unfairl5 that No Fair Trial is

*ossi9le<

A! De8ision to arrest

"ne of the submissions of the Defence that the decision to arrest the

Accused is f+a-ed and in breach of CP=s Circu+ar 'o2>2003 ! hereinafter

referred to as “ 4


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scrupulously observe the #udges (ule. ?nder no circumstances should

they effect any arrest unless same has been ordered by the Commissioner

of 7olice after perusal of the relevant case file and assessment of the

evidence on hand

.he Defence=s contention is to the effect that it -as not the Commissioner

of Po+ice ! “CP# $ -ho ordered the arrest but rather it -as ACP 4udama+a% -ho

did so .he Defence a+so contends that since the Accused had not %et given his

defence statement on 22@0>@11 at 0>00 hrs, the CP cou+d not have given a

roer decision since he did not have Accused=s statement to assess the

evidence on hand

Bo-ever, it is c+ear from the defence=s -ritten submission 9page #- of the

written subissions fro the Defence:) that AP Coret arrested the Accused

5urthermore, the Defence did not disute that D? hoora -rote a reort to the

CP on 21@0>@11, -hich he remitted to AP Coret to conve% to CP 9page ## of

the written subissions fro the Defence:. .his is a+so borne out from the

evidence of D? hoora 9vide proceedings of ">(&>("?$ page '-:. .he +atter

ho-ever added that the reort -as addressed to the CP re;uesting assistance to

arrest the Accused Be neverthe+ess admitted having received a

corresondence from ACP 4udama+a% on 22@0>@11 at about 0>00 hrs

authoriing the arrest of Accused D? hoorah a+so stated that ACP 4udama+a%

signed the said +etter but cou+d not sa% -ho too: the decision As regards the

fact that the authoriation to arrest the Accused -as given b% the CP prior to the

Accused having even given a defence statement, D? hoora stated that -hi+st

c+earance ma% have been obtained from CP, the decision to arrest -ou+d sti++ be

ta:en b% the most senior o+ice officer at ?CAC

As regards the vie- ta:en b% the Defence in resect of the decision for

Arrest ta:en b% a erson other than the CP, the Court finds that @

(a) +4< @uddaalay held the post of +ssistant 4oissioner of


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(b) there is nothing to say that +4< @uddaalay did not consult the 4< before

reaching such decision$

(c) there is nothing on record to show that that +4< @udaalay$ subordinate

of 4(&>("?: that AP Coret -as the most senior o+ice

officer osted to ?CAC

.hus, -hether one -ou+d measure from the standards of the CP=s Circu+ar

9Doc += refers: or the genera+ o-ers of arrest of a o+ice officer seconded to?CAC as recognied b% our Courts, the same resu+t is reached, name+%, that

there is nothing -hich affects or taints the +ega+it% of such an arrest

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.rue, there might be some ;uestion mar:s raised as to -hether it -as the

CP himse+f -ho gave the consent or -hether such consent -as given after due

assessment of a++ the evidence on record 9ut this -ou+d not be sufficient to cast

an% shado- of i++ega+it% on the arrest

8e here refer to *ara+ra*h = of the C1>s Cir8,lar -hich reads as

fo++o-s@

…

%. 7olice officers posted to 5C/C are hereby reminded that any departure

from the above directives will entail severe disciplinary actions.

.hus shou+d there have been an% non@com+iance to the said Circu+ar, this

-ou+d on+% resu+t in disciplinary action and -ou+d not in itse+f render such arrest

i++ega+

8e therefore find that there is nothing un+a-fu+ in resect of the decision to

arrest the Accused b% AP Coret

?! Statements not re8ore from the *ersons mentione in

A88,se>s efen8e statement

.he Court is in agreement -ith the Prosecution=s argument that the

en;uir% -as not based on Disc+osure of ?nterest at Cabinet +eve+ and recording of

such statements from the ersons mentioned in Accused=s defence statement

-ou+d have been of no conse;uence in as much as the% had no direct or indirectbearing to the resent charge

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.he issue is not one of conf+ict of interest arising in resect of the se+ection

of /edoint Etd as being the site for the 'ationa+ eriatric Bosita+ !“'B#$ as

decided b% the Cabinet .he decision -hich is the subFect matter before this

Court is the reallocation of funds as regards the payment to >edpoint Dtd

for the purchase of the land and building for the EF) pro;ect ?t cannot beemhasied enough that statements from the t-o -itnesses mentioned -ou+d

have served no usefu+ urose in vie- of the resent charge referred b% the

Prosecution against the Accused

C! .CA? "$&/

8hi+st the Court agrees that the e


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as the material is not privileged or is not protected from disclosure on any

other ground.G

.hus, it is c+ear from the above e) Finan8ial Instr,8tions

(@FI>) "&& "&&=

.he Prosecution does not disute that the 5// is outdated or that it is

com+emented b% 5? 200G & 200>

.he Prosecution seems neverthe+ess to favour the testimon% of /rhugroo (-ho re+ies on the outdated 5//) to sa% that /"56D arova+ -as

re;uired in order to roceed -ith e A++ocation 6 to sa% that /inistr% of Bea+th & Iua+it% Eife !“/"BIE#$ cou+d have

roceeded -ith the re a++ocation transaction -ithout /"56D=s arova+

8e note that /r ee-ooth refers to the 5? 200> in his statement given to

the ?CAC so that it cannot be said that the DPP -as una-are of same, a++ the

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more so since a++ these documents are free+% avai+ab+e from the /"56D -ebsite

as stated b% /r Hi, 9udget Director at /"56D

9e that as it ma%, in the +ight of an ana+%sis of the evidence adduced andthe resent charge (see be+o-), it is obvious that these documents as -e++ as the

asect as to -hether arova+ of /"56D -as re;uired is definite+% of +itt+e or no

re+evance to the resent charge

E! The Char+e

.he rationa+e of the rinci+e of the “charge being put to an +ccused, is to

araise him of the case he has to meet in order to ut for-ard an aroriate

defence

.he imortance of this rocedure is fu++% e is based and on which the learned Magistrate relied to convict hi

was a part of a defence stateent which appellant had given in response to a

charge of possession of ?& packets of cannabis under section '&9":9f:9i:$ #"9":9i:

9>:$ #?9":$ #%9?:9a: and #- of the Dangerous Drugs +ct #" of >&&& as aended

by +ct >/ of >&&' 9“the +ct”:. 5here is no defence stateent for$ and indeed$ a

coplaint of giving false stateents in relation to the drug dealing offence$ in

breach of sections #>9":9a:9#: of the +ct was never put to hi.

"# 0t is our view$ therefore$ that the appellant did not have a fair hearing in the

circustances. 5he sae thing would apply to the charge under 4ount '. For the

sae reason$ we take the view that the conviction cannot stand

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…

The appellant had a right to know in the first place the details of the case

regarding the false statement. Eothing shows that it was ever put to him

that he would be charged for an offence of giving a false statement in

connection with a drug offence. Section $! '3 provides that every person

who is charged with a criminal offence ... shall be informed as soon as

reasonably practicable, in a language that he understands, and, in detail, of

the nature of the offence.G 5hat constitutional iperative has been breached in

this case and a conviction cannot be based on that core irreducible iniu of

fairness.

"% +s was stated by the alaya [$%:& /C ", ""1 by )ord Denning7

45f the right to be heard is to be a real right which is worth anything, it must

carry with it a right in the accused man to know the case which is made

against him. )e must know what evidence has been given and what

statements have been made affecting himH and then he must be given a fair

opportunity to correct or contradict them.G

"- 5rials are conducted on the basis of the principle of natural 1ustice. 5here

are a nuber of strands to this. + party has a right to know the case against hiand the evidence on which it is based. 3e is entitled to have the opportunity to

respond to any such evidence and to any subissions ade by the other side.

5he other side ay not advance contentions or adduce evidence of which he is

kept in ignorance.

Bo-ever, the situation in the resent matter is c+ear+% distinguishab+e from

#hootoo 'supra3

8hi+st the charge might not have been stricto sensu forma++% ut to

Accused, the +atter cannot in fairness +ead that he or his +ega+ advisers -ere

una-are of the charge he had to meet

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?t is true that both D? hoora and C? A++ear conceded that the charge -as

not ut to the Accused -hi+st his defence statement -as being recorded 9ut

this does not ref+ect the rea+ icture .here is a need to +oo: at the chrono+og% of

events

Counse+ for Accused addressed a corresondence to ?CAC dated 12@0>@

2011 9Doc D refers: -herein amongst others, he made a re;uest to be

communicated -ith the charge to be ut against Accused ?t is a+so re+evant to

note that defence counse+ -as a+read% a-are that the en;uir% as regards his

c+ient -as in resect of /edoint Etd for the setting u of the 'B and this is

evident from the heading of his corresondence

?t is a+so of interest to note that on 12@0>@11 itse+f, the same Counse+ had

sent a corresondence to the ecretar% of the Cabinet 9Doc D refers:. .he

contents of this +etter is most re+evant to assess -hether the Accused -as a-are

of the charge against him or other-ise .he re+evant art of the said

corresondence reads as fo++o-s@

…

. >y client has instructed me to the effect that his defence rests entirely

on what took place at Cabinet meetings as regards the setting up of a

Eational Feriatric )ospital.

2. +or the purposes of his statement in his defence my client shall avail

himself of all legal provisions to secure protection of law and the #udges

(ules. >y client has instructed me that in giving his statement he shall be

under an obligation to disclose to 5C/C matters relating to what took place

at meetings of Cabinet.

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Defence counse+ then re;uested for communication of severa+ Cabinet

aers

.hus -hi+st there had been a re;uest from ?CAC as regards the nature ofthe charge against the Accused, simu+taneous+% on the same da%, defence

counse+ had a+read% started rearing Accused=s defence to the said charge b%

re;uesting from the ecretar% to Cabinet documents and arova+ to refer to

them

8hat fo++o-s is of even more interest .he ?CAC had re+ied to Defence

Counse+ on 17@0>@11 9Doc D? refers: -ho -as informed therein that the

statement -hich the Accused -as invited to give -as in resect of “ …. ore

specifically offences relating to conflict of interest andB or unlawful use of

office or position ….”.

.herefore, even before the Accused gave his first defence statement on

22@0>@11, he -as a+read% a-are of the charge to be ut against him and had

even a+read% started to reare his defence

.he Accused decided to ersona++% -rite his statement on 22@0>@11 9Doc

4 refers: after he -as du+% cautioned and e


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Accused then -ent on to e


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9% that time, it -as abundant+% c+ear that Accused -as fu++% a-are of the

charge against him since he had a+read% been rovisiona++% charged before the

District Court of Port Eouis so that he :ne- erfect+% -e++ -hich case he had to

meet

.he offence & articu+ars in the rovisiona+ charge before District Court

PEouis is simi+ar to the information before us K Doc +D refersA so that b% the

time -hen Accused -ent to ?CAC for the second defence statement, he cou+d not

+ead ignorance of the nature of charge and nature of case against him

5urthermore, the numerous corresondences from ?CAC as from

22012 ( see Doc 51, 52 etc) to 2G32013 addressed to Accused sho-

c+ear+% that ?CAC -as re;uesting the +atter to come and give his statement 8e

find ho-ever that Accused has ersistent+% de+a%ed and ostoned the giving of

his defence statement to ?CAC on grounds that he had not %et obtained the

documents he re;uested for and this desite having been before the ureme

Court for such a+ication and after having obtained communication of certain

documents

8e can on+% observe here ho- cou+d those documents re;uested for cou+d

have assisted Accused in his defence e6 facie the rovisiona+ charge -hich -as

a+read% :no-n to him .his is definite+% not a case -here Accused can aver that

his right to si+ence has been breached andor -here he can sa% that he -as

come++ed to give evidence under oath in order to ut for-ard his defence in

court

.hus, -hen a++ the above are considered, articu+ar+% the +etters as -e++ asboth statements to ?CAC, it is found that the Accused -as a-are that he -ou+d

be charged -ith an offence under section 13(2) P"CAL he -as in fact charged

-ith such an offence as er his o-n admission in his second statementL he -as

invited to comment on /inute (*) of the ed 5i+e on -hich the case against him

rested and he -as du+% sho-n /inutes (*) and (J) of the ed 5i+eC'o 2*71

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.herefore, it cannot be said other-ise that Accused -as fu++% a-are of

both the charge against him as -e++ as the nature of the case against him

Accused -as referred to the evidence on -hich the case against him -as based

and he stated that he had a defence to the said charge 8e find that a susect

-ou+d on+% be ab+e to avai+ himse+f of a defence once he is a-are of the charge

against him and the evidence against him

?t is c+ear that the resent Accused -as at a++ times fu++% a-are of the

charge against him, the nature of the offence as -e++ as evidence avai+ab+e

against him

?n fact, before ending on this asect of “alleged unfairness due to the

charge not being put to the +ccused” , -e need to high+ight the fact that the

Accused -as at a++ times treated so fair+% b% ?CAC that none other than the

Director of ?nvestigations at ?CAC, D? hoora ao+ogised to the Accused for

having to investigate the resent charge ?t -ou+d be hard to find an% fairer

treatment on the art of ?CAC vis a vis an Accused

?n the +ight of above, -e find that there is nothing on record to even

suggest the remotest inkling of unfair enquiry in this matter. Ie are of the

opinion that a fair trial according to law, which involves fairness both to the

defendant and the prosecution is fully ensured and there is no reason

whatsoever to e8ercise our discretion to stay the present proceedings.

8e sha++ no- consider the resent charge against the Accused in the +ight

of evidence adduced

ANABSIS OF THE CHAR4E IN THE BI4HT OF EIDENCE ADDUCED

.he Court -ishes to c+arif% the utter confusion arising from the s-eeing

manner in -hich the Prosecution conducted its case, the terms used and the

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evidence that ensued ?ndeed, a +ot of, might -e sa% @ irre+evant @ evidence -as

adduced b% the Prosecution .his observation is even more Fustified -hen the

Court finds that the Prosecution=s case is based on an “Mncha++enged Admission

made b% Accused#

/ost of the evidence ushered in b% the Prosecution as regards arova+ of

re a++ocation of funds b% /inister/"56D, 5//, 5? 200G & 200>, Arova+ b%

/inister or not, Caita+ 9udget, ProFect 9ased 9udgeting, ProFect 4a+ue, 'B,

/edoint Etd is considered as irre+evant to the actua+ matter before the Court

.he Court furthermore notes the s+%, underhand insertion on the art of the

Prosecution of a ne- aggravating factorne- case as er its #th paragraph of

para #.'..> of its Critten 2ubissions -hich has abso+ute+% nothing to do -ith

the resent matter Desite observations made b% the Court during the course of

the roceedings -hen this issue -as raised name+%, that that this is an asectthat did not form art of the information and cou+d have been the subFect of

another rosecution under another section of P"CA, the Prosecution has

neverthe+ess strong+% and -rong+% ersisted in this vein and inc+uded same as

art of its 8itten ubmissions 'eed+ess to sa% that it has been disregarded b%

this Court

?n fact, the decision in lite as er the information and articu+ars rovided is

-hether the Accused Japproved the reallocation of funds amounting to

(s.$, 1!$, "!!. to pay >edpoint DtdK

.here has been am+e evidence adduced as regards @virement> -hich

according to the testimon% of /r Hi as -e++ as the 5? 200G & 200> roduced

(Docs @ @" refer ) is the technica+ term for the reallocation of funds from

one item of e8penditure to another item of e8penditure. .he fu++ definition of

N4irement= is given as er 5? 200G F0 Go." of >&&- and reroduced be+o-

“VirementG L

'a3 means a reallocation of funds within a >inistryM6epartment

'i3 from an item of e8penditure to another item of e8penditure

within a Sub7rogramme or 7rogrammeN or

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'ii3 from an item of e8penditure in respect of a Sub7rogramme or

7rogramme to another item of e8penditure in respect of another

Sub7rogramme or 7rogrammeN and

'b3 includes a reallocation of funds

'i3 from a >inistryM6epartment to another >inistryM6epartment in

respect of items of e8penditure relating to acquisition of assets

'08penditure Categories "$ and "3N and

'ii3 from 7rogramme %-% 4Contingencies and (eservesG.$

?n fact, this -as -hat /r ee-ooth -as referring to during the course of

his testimon% -hen he stated that the re(allocation of funds 9H@ireent,: ay be

effected without seeking the prior approval of MOFED. And this statement of fact

is consistent -ith the 5? 200G and 200> ho-ever subFect to certain conditionssecified therein

.he re@a++ocation of funds -hich is the subFect matter of the resent

information before this Court and in resect of -hich decision -as a++eged+%

ta:en b% the Accused is in re+ation to the so,r8e of f,ns from hi8h *a5ment

to Me*oint Bt o,l 9e effe8te!

.his is c+ear from /r ee-ooth himse+f -hen he gave the fo++o-ing

ans-ers at the end of his cross einistry of )ealth has been informed that it has

unused funds the correct procedure would have been that the >inistry of

)ealth itself does the reallocationP

/. Aes

O. /nd there was no need to refer the matter to the >inistry of +inanceP

/. Aes

O. Aou mean that yes there was no need to refer the matter to the >inistryof +inanceP

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/. Eo, 5 wish to point out one thing why we refer to the >inistry firstly

because it was L the funds were identified from the Dotto fund so thatKs

why we wrote to the >inistry of +inance to release funds.

.hus, it is seen that that because there -as initia++% another source of

funds from -hich the 'B ProFect -ou+d have been financed, name+% the NEotto

funds=, there -as therefore a need to re;uest the /"56D for the re+ease of

funds from the said NEotto 5und=

.his is the consistent understanding -hen the +etter dated 0>@0J@10 (Doc

I> refers: b% /rs /a%a BanoomanFee, then /inister of /"BIE is considered

?n fact, she addressed a ministeria+ corresondence to the Accused re;uesting

the +atter to re@a++ocate amount earmar:ed for her /inistr% under the NEotter%

5und= to the roFects as +isted at the Anne< and that the said re;uest -as as a

resu+t of meeting -ith /r Do-ar:asing enior Adviser 8hen the Anne< iserused, it is found that in fact s170 mi++ion had been earmar:ed from the

Eotter% cheme for the 'B ProFect

?t is a+so found that on 22@12@10, /r ee-ooth of /"BIE had addressed

a corresondence to the 5inancia+ ecretar% (attention /r C amchurn of

/"56D) so as to submit to the /"BIE a departental warrant for the sum of

s 1, J01,300@ to enab+e a%ment to be effected -ithin fisca+ %ear 2010 for

the ac;uisition of +and and bui+ding for the setting u of a 'B 9Doc E refers: ?t

is a+so re+evant to note that reference -as c+ear+% made to /edoint Bosita+

.hus, as at 22@12@10, there -as no reference to N4irement= but to

HDepartental Carrant, since origina++%, the 'B ProFect -ou+d have been

financed from the NEotter% 5und= ?t is here re+evant to note that in fact -hen

reference is made to NEotter% funds=, it actua++% referred to the Conso+idated 5und

and this -as fu++% e


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.his is a+so obvious from the evidence of /r amchurn -ho stated the

fo++o-ing in Court@

O. '9y Court3 Ihat does it implyP

/. This implies that the >inistry of +inance will not give money because forthe financing of the pro;ect was that >inistry of +inance. Eow, we are

asking >inistry of )ealth to use your fund to finance the pro;ect but the

question is whether it was approved by 7arliament < at the time of

national budget approved, it was not in the budget, it was in the >inistry of

+inance budget to finance the geriatric hospital from the lottery funds.

There is a change of financing."

.hus, the origina+ contem+ated source of funds for the 'B ProFect -as

from the NEotto 5unds= from /"56D Bo-ever, as er /r amchurn, there -ereinstructions from /r Hi not to use the Eotto 5und but to instead finance same

through the use of

/"BIE=s ?dentified avings

According+%, /inute (*) in the ed 5i+e -as drafted b% /r amchurn and

same -as referred to the /"56D officia+s as -e++ as to the Accused, as the then

/inister of /"56D for their consideration and Arova+ in -riting It is this

e8ision hi8h is the s,9e8t matter of the *resent matter!

.his is articu+ar+% emhasised -hen /inute (*) is du+% considered ?n

fact, the fo++o-ing is found mentioned in the said /inute@

H…the Ministry of 3ealth and Juality of life 9MO3J): is re8uesting that funds …

be ade available$ by way of a Departental Carrant$ fro the proceed of the

lottery funds to finance the ac8uisition of land and building for the setting up of a

geriatric 3ospital.

'. 5he pro1ect was initially eararked to be funded under E6penditure ite

>->>"&&(inistry of )ealth and Ouality of Dife be

requested to reallocate funds from identified savings.

3 .ranscrit of roceedings dated 2>@01@2017, age G7

?bid, age G7@G*

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Page '= of 66


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5rom the above, it is obvious that the re@a++ocation of funds in ;uestion is in

fact in resect of 8han+e of so,r8e of f,ns for the a87,isition of lan an

9,ilin+ for the settin+ ,* of N4H!

?t shou+d a+so be borne in mind that it -as never art of the Prosecution=s

case that Accused -as in an% -a% invo+ved in an% cabinet decision as regards

the 'B roFect or as to the choice of the site for the 'B ProFect .he

Prosecution=s case is so+e+% based on the decision aking process under Minute

9: as regards the re(allocation of funds so as to pay Medpoint )td for the

ac8uisition of land and building for the setting up of GK3.

.hus, the e A++ocation of funds as er the articu+ars of the information is

@ the 6ecision taken by /ccused as the >inister of >@+06 as regards the

/pproval which was given so as to Change from the originally /pproved

Source and >ode of +unding 'from >@+06Ks Dottery +und by way of6epartmental Iarrant3 to make use of >@)ODKs 5dentified Savings in order

to enable >@)OD to use same for EF)Ks purchase by way of a re

allocation of funds 'JVirementK3 e8ercise.

EBEMENTS OF THE OFFENCE

.he rea+ issue is therefore -hether Accused -hi+st being a public official

too: art in a decision of /"56D, APP"4?' the re a++ocation of funds to a%/edoint ( as e


21/33

an abso+ute rohibition on the public official to either vote or take part ?t goes

-ithout sa%ing that such abso+ute rohibition destro%s the ossibi+it% of an

Accused art% avai+ing himse+f of the defence that he acted in good faith. .he

Court a+so notes that section 13(2) P"CA mentions .AN/ roceedings of that

ub+ic bod% re+ating to such decision so that such a public official thereforecannot and shall not take part in any proceedings, whether a ma;or or

minor one, administrative or otherwise, relating to such decision. 5n short,

there is absolute prohibition to take part in any way whatsoever in any

decision making process.

.he reason for such an abso+ute rohibition is to reserve the integrit% of

the decision ma:ing rocess so that there ma% not be an% ercetion of bias in

the mind of a fair minded and informed observer .his is consistent -ith the dicta

of the ureme Court in 9aboolall v +armers Service Corporation * ors [!$! SC# "$"& , the re+evant e


22/33

'i3 public official whose

'ii3 relative has a personal interest in a 6ecision

'iii3 which a public body is to take *

'iv3 public official taking part in any proceedings of that public

body relating to such 6ecision.

'i3 7ublic official

?t is not disuted that the Accused -as a /inister of the overnment of the

da% at the materia+ time ?n fact, Accused concedes in his defence statement

9Doc 4 refers: that he -as aointed /inister of 5inance and 6conomic

Deve+oment in the then government

.he enab+ing Act has defined the term Hpublic official, as fo++o-s under

section 2 of the Act

Qpublic officialQ L

9a: eans a >inister $ a eber of the Gational +ssebly$ a public officer$ a

local governent officer$ an eployee or eber of a local authority$ a eberof a 4oission set up under the 4onstitution$ an eployee or eber of a

statutory corporation$ or an eployee or director of any Kovernent copanyA

9b: includes a ;udge$ an arbitrator$ an assessor or a eber of a 1uryA

9c: includes an official of the 0nternational 4riinal 4ourt referred to in the

0nternational 4riinal 4ourt +ct >&""A.

.herefore, it goes -ithout sa%ing that for a++ intents and uroses of the

Act, the Accused, a minister, is a Nub+ic officia+=, -ithin the arameters +aid do-n

b% the Act

'ii3


23/33

a++ocation of funds so as to enab+e a%ment for ac;uisition of /edoint Etd, in

-hich coman%, /rs ha+ini Devi /a+hotra, sister of Accused, he+d 237> O of

shares

.he definition of “relative” as er section 2 of the Act@

LrelativeL$ in relation to a person$ eans (

9a: a spouse or con1ugal partner of that personA

9b: a brother or sister of that personA

9c: a brother or sister of the spouse of that personA or

9d: any lineal ascendant or descendant of that personA

?t is art of the Prosecution=s case that the re+ative in ;uestion in this

matter is the Accused=s sister/rs ha+ini Devi /a+hotra .he Accused hasc+ear+% admitted in his statement 9Doc 4 refers$ folio "&&"&-: that ha+ini Devi

ugnauth is his sister -ho is civi++% married to one Dr /a+hotra, hence no-

/rs ha+ini Devi /a+hotra .his is an undeniab+e fact -hich in an% event has

a+so been roved through the roduction of certified e


24/33

The offence is committed merely by taking part in /EA proceedings

which leads to a decision in which the relative has a personal interest. The

offence is committed in fact when the /ccused places himself in a situation

of conflict of interest.

.he Court is fu++% a-are that the decision is in re+ation of a “coman%# and

that section 13(2) P"CA has not secified “copany” but rather -here the public

official$ an associate or relative has a personal interest.

Bo-ever, even if the Prosecution has adduced evidence as regards the

e


25/33

.he public body in ;uestion here in the +ight of the evidence adduced is

undoubted+% /"56D .he Act has given the fo++o-ing definition to “ub+ic bod%#

under section 2 of the P"CA

Qpublic bodyQ L

'a3 means a >inistry or Fovernment department, a 4oission set up under

the 4onstitution or under the authority of any other law$ a local authority$ or a

statutory corporationA and

9b: includes a Kovernent copanyA

.hus, it is c+ear that the /inistr% in ;uestion in this matter as er evidence

adduced is a ub+ic bod%

8e a+so have no doubt that /"56D had to decide on the issue of re@a++ocation of funds fo++o-ing the corresondence from /r ee-ooth on 22@12@10

so as to identif% the funds to enab+e a%ment to /edoint Etd for the ac;uisition

of +and and bui+ding for the 'B ProFect

?t is a+so essentia+ here to high+ight the fact that this -as b% no means a

sim+e decision 5irst+%, the substantia+ sum invo+ved is ref+ective of the nature

and substance of the decisionL second+%, the urgenc% of the decision since /r

ee-ooth had c+ear+% secified in his corresondence dated 22@12@10 9Doc E

refers: H ... to enable payent to be effected within fiscal year >&"&B 1 an 2010

to 31 December 2010 ., and it -as a+read% 23@12@10L +ast+%, the imortance of

this decision is evident from the /emorandum attached to the 4irement

Certificate dated 2J@12@10 9Doc G refers: .he re+evant aragrah in the

/emorandum reads as fo++o-s@

... this was necessary to enable the disbursement of funds under the

appropriate item of e8penditure to settle the land acquisition deal for the

setting up of a Eational Feriatric )ospital....

?t is c+ear that had no source of funds been identified urgent+%, theovernment -ou+d not have been ab+e to a% /edoint Etd -ithin fisca+ %ear

2010, hence the imortance of this decision

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'iv3 4... public official takes part in any proceedings of that public

body relating to such decision ...G

.he decision in ;uestion is to be found at /inute (*) of the ed 5i+e

.he Accused does not disute his signature on /inute * and he a+soagreed -ith para # of Minute as er his o-n admission in his statement (Doc 4

refers ) Be ?n fact stated that he too: cogniance of the contents of /inute (*)

before signing same and did c+arif% that he did not ta:e cogniance of the

enc+osure referred at paragraph " of Minute 9: referring to folio. Go.? and

paragraph > anne6 folio ?9a:. Be a+so maintained under oath in Court to having

aroved the said /inute and affi


27/33

9#: 3e thereafter endorsed such agreeent by inserting the word Happroved,

under Minute 9%: and signed it.

?t is a+so evident that Accused too: art in the roceedings b% considering

the /inute -hich cu+minated in his decision of agreeing to and aroving the said

re;uest

As regards the status of such decision, /r Hi stated that the Accused

gave the final agreeent.G .his is a+so consistent -ith /r amchurn=s evidence

to the effect that usua++% the 5inancia+ ecretar% -ou+d arove fi+es sent to the

+atter un+ess the +atter decided that the fi+e needed to be sent to the /inister for

the +atter=s arova+ ?t is found in the resent matter that the said /inute -as

for-arded to the /inister since he -as one of the ersons to -hom /inute (*)

-as c+ear+% addressed, therefore im+%ing that the /inister=s arova+ -as

u+timate+% sought

.he Court a+so notes the status of the five ersons in /"56D=s hierarch%

to -hom Min,te # is addressed to and the secific -ording of paragraph ? of

Minute -hich states 4 < sub;ect to your agreement < 4 !see below $

ince the said minute -as addressed to five ersons inc+uding the

Accused for their consideration and agreement, it cou+d a+so be construed that

such agreement is in the form of a COBBECTIE MOFED A4REEMENT that

/"BIE -as to be re;uested to use their funds, and such co++ective agreement

?'CEMD6 the 4P/Accused=s Arova+

?ndeed, if on+% the /inister=sAccused=s Arova+ had been re;uired @ as

the Prosecution -ou+d ma:e the Court be+ieve @ then the Court -onders -h%

/inute * -as circu+ated amongst /"56D=s to officia+s and -h% the% signified

their Agreement

Bo-ever, -e find that -hether the arova+ b% the Accused is to be

construed as an individua+ or co++ective one is not re+evant for the uroses of the

resent offence ?n fact, the e@01@17, age 3

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28/33

“ta:ing art#, -hether maFor or minor, individua+ or co++ective -hich +eads to a

decision

As for the Accused=s signature on Minute , the Court notes the secific

use of the -ord “re8uested” in paragraph # of Minute ( the re+evant sentences

are reroduced over+eaf for ease of reference @

#. …. 0t is therefore proposed that Ministry of 3ealth Juality of )ife be

re8uested to re allocate funds fro identified saving….”

?. 2ub1ect to your agreeent to para # above$ MO3J) will be infored

accordingly

9y affi8ing his signature and approving the above request after

having considered the said >inute, the /ccused has beyond reasonable

doubt taken part in the decision making process which led to the decision

of requesting the >@)OD to re allocate funds from identified savings to

enable payment to >edpoint Dtd for the acquisition of land and building for

the EF) 7ro;ect.

.he defence has submitted that since the Accused had stated that he had

considered /inute (*) on+% -ithout ta:ing into account the other

fo+ioscorresondence in the ed 5i+e and since /inute (*) did not ma:e an%

mention of /edoint Etd, he cou+d not ossib+% have had :no-+edge that /inute

(*) -as in fact referring to /edoint Etd .his 9ench finds such reasoning devoidof substance and this for the reasons given be+o-

.he Court notes that Min,te # as dra-n u b% /r amchurn of /"56D

indeed ma:es no mention of the -ord “/edoint Etd# and refers on+% to “'B#

Bo-ever, a+beit the -ord /edoint is not mentioned in /inute *, the Court

observes that various corresondences in the ed 5i+e in -hich /inute * is found

o ma:e mention of the -ord “/edoint# and it is abundant+% c+ear that the name

/edoint -as a+-a%s mentioned in resect of ac;uisition of +and and bui+ding for

'B so that the +in: bet-een /edoint Etd and 'B -ou+d and shou+d havebeen easi+% and reasonab+% made b% the Accused

.he Court :ees in mind the fact that Accused dec+ared his interest at

Cabinet stage as soon as he heard about the 'B roFect and of the ossibi+it%

of /edoint being one of the bidders Be not on+% dec+ared his interest but

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29/33

-ithdre- from Cabinet on the grounds that he did not -ant to articiate in an% of

the de+iberations -ith regard to that roFect>

Be adoted the same attitude -hen he -as referred to the +etter from the

then /inister of /"BIE, /rs /BanoomanFee dated 0>@0J@10 9Docs I$ I>

refer: ?n fact, -hen the contents of this +etter are considered, it is found that

there is no mention of /edoint Etd at a++ .he +etter -as in resect of source of

funding from the JDotto DotteryK scheme of certain pro;ects including EF)

but -ithout mentioning /edoint Etd Het, the Accused admitted that -hen the

said +etter -as brought to his attention, he instructed his adviser, /r

Do-ar:asing to dea+ -ith it te++ing him that he did not -ant to have an%thing to do

-ith the rocess and -ith the setting u of 'B10

?t is a+so of imortance to note here that the Accused ac:no-+edged that

the sum invo+ved in /inute (*) -as a significant one, 11 so that as a resonsib+eminister, he cannot be be+ieved -hen he stated he did not consider the other

fo+ios mentioned therein before affi>, the same %ear -hen he had a+so distanced himse+f

from the affairs of /edoint Etd

Bo-ever, -hi+st it is c+ear from his deosition that he -ou+d -ant the Court

to be+ieve that he did not :no- the number of shares his sister he+d in the said

> 4ide transcrit of roceedings dated 27@02@17, age 2J

10 ?bid, age 73

11 ?bid, age 7*

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30/33

coman%, he ho-ever did not state, in so man% c+ear or unambiguous terms, that

he did not :no- -hether his sister -as a shareho+der in the said coman% "n

the contrar%, -hen he -as as:ed as to -h% he fe+t it imortant to disc+ose his

interest in /edoint Etd, he re+ied the fo++o-ing

/H Iell >edpoint Dtd, my sister and my brother in law were

shareholders and it was being managed by my brother in law. Ihen the

issue was raised in Cabinet, 5 declared my interest and 5 said 5 donKt want to

have anything to do with that.$

.he above ans-er revea+s that the Accused -as fu++% a-are that his sister

-as shareho+der in the said coman% as -e++ as having an interest in the said

matter

Bo-ever, the Court finds that the Accused desite a++ the above -ou+d nothave refused to ta:e art and decide on the said re;uest in /inute (*) du+%

addressed to him 8e find suort for the said conc+usion in the +ight of his

re+ies on record Be in fact stated c+ear+% that he would not have refused to sign

the said inute 9: since he was the Minister of Finance and was in the country

so that he could not do otherwise than to approve."' Be is a+so on record to have

stated in Court that at an% rate since he had a+read% dec+ared his interest in

Cabinet and had never articiated in the decision ma:ing rocess that +ed to the

a-ard, he thought that ever%thing had been decided1 Be a+so stated that he

had no other choice but to arove17

Mnfortunate+%, Accused=s rec:+ess attitude -hen the decision to rea++ocate

funds so as to enab+e a%ment to /edoint Etd in -hich coman% his sister has a

ersona+ interest +ed to the commission of the resent offence

.he Court has a+read% high+ighted that the rohibition to ta:e art in an5

roceedings is an abso+ute one in the +ight of the rovision of the +a- under

section 13(2) of P"CA, so that even ?f the Accused acted in good faith, it -ou+d

12 ?bid, ages 71@72

13 ?bid, age 27

1 ?bid, age 7G

17 ?bid, age *>

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not constitute an% defence .he defence of necessity is not in an% -a% avai+ab+e

here for obvious reasons as er the submissions from the Prosecution

.he Defence a+so estab+ished from C? A++ear that the Accused did not have

to ma:e the choice of bu%ing one amongst severa+ c+inics .he Defence further

c+ear+% submitted that there -as no evidence that the Accused had ta:en a

decision in favour of himse+f or his re+ative so that there is no offence 5he 4ourt

finds that the Defence,s interpretation of conflict of interest is flawed.

• Ihat is 4conflict of interestGP

.here is no re;uirement that Accused=s sister shou+d have been favoured

in such Decision

.he strict -ording of the enactment is such that the e+ements of the

offence are roved -hen the *,9li8 offi8ial taGes *art in AN De8ision

maGin+ *ro8ess in hi8h his relative has a *ersonal interest! Baving such a

substantia+ shareho+ding in /edoint -ou+d cause one to have a “personal

interest” in that coman%

As er the .Iorking 7apers on Conflict of 5nterest H Degislators,

>inisters and 7ublic @fficialsG by Ferard Carney, /ssociate 7rofessor of

Daw at 9ond ?niversity /ustralia ( -hich stud% -as commissioned b%

.ransarenc% ?nternationa+, “conflict of interest” is described in its sim+est terms

as @

4 < when the private interests of a politician or official clash or even

coincide with the public interest. Such a conflict of interest raises anethical dilemma when the private interest is sufficient to influence or

appear to influence the e8ercise of official duties.G

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And as er @0C6 '!!23 Conflict of 5nterest 7olicies * 7ractices in

Eine 0? >ember States 4 / Comparative (eviewG @ 20KM+


33/33

reasonab+e man, to so c+ash .he appearance of influence or perception of

bias is sufficient to constitute the offence of conf+ict of interest

.he P"CA has rovided for the offence of conflict of interest as a crimina+offence .he facts of the resent case estab+ish the e+ements of the offence

be%ond reasonab+e doubt and the Court finds the charge roved be%ond

reasonab+e doubt against Accused

According+%, for a++ the reasons given above, -e find a++ the e+ements of the

resent offence against the A88,se *rove 9e5on all reasona9le o,9t!

The Co,rt therefore fins A88,se 4UIBT as 8har+e!

Dated this 30th

da% of une 2017

……………………………………… ……

…………………………………………

G.!asoondar$ M.0.+ Geerooa$

+g @.

Documents

Le Jugement de La Cour Intermédiaire Contre Pravind Jugnauth