Blog: Pressure, Blackmail or Scapegoat?

There is no Maya Hanoomanjee affair. There is simply a case of alleged impropriety that may give rise to a suspicion of corruption as it is understood under the Prevention of Corruption Act (PoCA) following the purchase of the Medpoint clinic by the State. The crux of the matter seems to be, at least from information that has transpired in the media, the inflated price that rose from about 72 million to 144 million rupees. Nobody in the government has been able to explain that sudden inflation and this very fact has started all kinds of speculation and rumours involving first highly placed public officials and Mrs Maya Hanoomanjee.

Now that Mrs Maya Hanoomanjee who was occupying the Health portfolio has resigned followed by the mass resignation of all MSM ministers from the government it is relevant to look dispassionately at the whole Medpoint saga. There are three aspects to the case: the institutional one; the legal one and the political one.

On the institutional level two departments are involved, the ICAC and the Office of the Director of Public Prosecutions (DPP). While the investigation is conducted by ICAC which means in actual fact by the police officers seconded to ICAC, there is no quibbling that the DPP is also involved and may be monitoring the whole matter. There is also no doubt that the ICAC must have been in regular consultation  with the DPP. After all at the end of the day the DPP will have the sole power and authority to advise a prosecution or not.This being the institutional set up how can the ICAC be attacked? Those who are clamouring that ICAC must have gone hopelessly wrong or insane in arresting the former Minister of Health are on the wrong track. The attack of the Leader of the MSM, himself a lawyer, against ICAC comes as a surprise. He may be convinced of the innocence of Mrs Maya Hanoomanjee. This is view and he is entitled to it. But that does not mean that the ICAC should be bound by what appears the subjective assessment of the situation by the former Minister of Finance.

This frontal onslaught of the Leader of the MSM against the ICAC bears a coincidentally strange parallel with the demise of the former Economic Crime Office (ECO) presided by Ms Indira Manrakhan. When former Minister Jayen Cuttaree became the target of an ECO investigation the Constitution was amended, the ECO was given an indecent burial and Ms Manrakhan sacked as the head of ECO. Who were the movers of this decision? The MSM/MMM government led by Sir Anerood Jugnauth. The speech of Pravind Jugnauth in the Assembly at that time is reminiscent of the stand he has taken against the ICAC today. Luckily for the ICAC the MSM and the MMM do not hold the required majority to scrap that institution in order to stultify it. Indirectly the attack is also aimed at the Office of the DPP. From the institutional angle the MSM and all the supporters of Mrs Maya Hanoomanjee have lamentably failed at the bar of public opinion.

On the legal aspect our system of criminal procedure is such that if there is reasonable suspicion against a person then that person must be charged and arrested subject to all the rights that that person enjoys under the Constitution and other laws of the land. Charging a person or proceeding to the arrest of a person for one of the offences allegedly perpetrated under the PoCA is a decision that is not taken lightly. There must be reasonable suspicion that a person has committed an offence. Reasonable suspicion is the terminology used in section 5(1) (e) of the Constitution. Reasonable suspicion or well-grounded suspicion or probable cause would exist when, in the words of the European Court of Human Rights, there is "the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence". There is no question of guilt at this initial stage.  The offence for which Mrs Maya Hanoonajee has been arrested is public official using his office for gratification. That offence is provided by section 7 of the PoCA and it reads:

(1) Subject to subsection (3), any public official who makes use of his office or position for a gratification for himself or another person shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years.

(2) For the purposes of subsection (1), a public official shall be presumed, until the contrary is proved, to have made use of his office or position for a gratification where he has taken any decision or action in relation to any matter in which he, or a relative or associate of his, has a direct or indirect interest.

An investigation by the ICAC is conducted by the Director of the Corruption Investigation Division at the request of the Commission where the Commission becomes aware that a corruption offence has been committed. The investigation has been started months back and, unless the contrary is proved, the ICAC must have gathered sufficient evidence to raise a case of reasonable suspicion against Mrs Maya Hanoomanjee. What is the wrong that ICAC has committed by following and complying with the law? If Mrs Maya Hanoomanjee feels or is convinced that she has been arbitrarily arrested without the threshold of reasonable suspicion being met she should appeal to the courts and not embark, through the leader of the MSM, on a campaign to suggest that everything is rotten at ICAC.

History provides us with very interesting twists. Under the regime of Sir Anerood Jugnauth, Sir Gaetan Duval was arrested for complicity in the murder of Azor Adelaide following a meeting that Sir Anerood Jugnauth had had with one of those convicted for that offence. That was considered a reasonable suspicion against Sir Gaetan Duval. He was subject to a preliminary inquiry that found he had a case to answer before the Assizes. His numerous applications to the Supreme Court to have the case against him tossed out were unsuccessful. At the end of the day the then DPP decided to file the case and not to proceed further without giving any reasons. Did we witness Sir Gaetan Duval lashing at the institutions then? Certainly not! He bore the full brunt of the law stoically. The irony is that he was even instrumental to his son, Xavier Duval, joining the government of Sir Anerood Jugnauth.

From the political angle there is no dispute that once she was arrested Mrs Maya Hanoomanjee had to step down. She declined or delayed to do so. Presumably, she was consulting with her leader, Pravin Jugnauth on the strategy to be followed. The strategy became public with the wholesale resignation of the MSM ministers from the government. How should this be interpreted? First the leader of the MSM states that this mass resignation was a show of solidarity with the former Minister of Health. This does not hold water. It was more a sign of discontent leveled at the way the investigation on the Medpoint affair was unfolding and against the ICAC as an institution. Secondly this move may legitimately be interpreted as an attempt to exert pressure on the two institutions involved in this investigation, the ICAC and the Office of the DPP. Thirdly it may equally be interpreted as blackmail on the Prime Minister Navin Ramgoolam that he should do something about the whole case. What is the scenario that the MSM has in mind? Revoking the Commission or talking to the Director of ICAC or talking to the DPP or what? Fourthly as Alan Ganoo stated in the press it may well be that the MSM is so fed up being an ally of Navin Ramgoolam that they seized the Medpoint case as a golden opportunity to leave the government as a first move to be followed presumably by a departure from the alliance led by the Labour party.

Whatever speculations we may put on this mass resignation the MSM as pointed out by Mr. Somduth Dulthumun in the press has caused the MSM to lose credibility with the electorate. If the MSM leaves the alliance it is a dead party unless it joins the MMM which would be an irony when we recall what Sir Anerood Jugnauth said about Paul Berenger before the 2010 elections or decides to prove its nuisance value in a three cornered fight at the local government elections.