The whole country has been following the MedPoint saga for the last seven years with great attention and concern. I am one of those who was always interested in legal cases. I remember running away from the Royal College Port Louis to attend the Le Mauricien case which was as that time known as “L’affaire Sheik Hossen”. This profound interest in legal matters led me to start legal studies at the age of 60. Having just started my studies in the legal field, I am still a layman in legal matters. I followed the Medpoint case at the Judicial Committee of the Privy Council (JCPC) live.

My initial encounters with my legal study books led me to the conclusion that some judgements of different courts of justice, including what was previously the House of Lords (now called the Privy Council) are criticised with very pertinent arguments by eminent legal professionals. Which means to say that Judges are human beings who can also err. Some judgements are even delivered taking into consideration the political impact that they would have on the country. Obviously, you cannot expect the judges to write that they have taken the political context into consideration because they are bound to judge a case on its legal merits only. So, to say that judgements of the Privy Council are the work of God is a very irrational statement.

I was surprised by the statement made on the media by our VPM Ivan on Monday. Mr Ivan Collendavelloo is someone I respected a lot as a barrister and as a former gentleman in politics when he resigned as MLA on a mere allegation regarding his signature on a passport application. He said that the Law Lords are “more intelligent” than we are. I beg to differ. The Law Lords may be more learned than we are; they have more experience than their counterparts; but to state that they are more intelligent is an insult to the citizens of Mauritius and to all other human beings. I do not have this inferiority complex to consider myself inferior to them. As mentioned above, they are only human beings who can also err.

Coming to the judgement in the MedPoint case, I humbly submit my opinion as a layman.

My conclusion is that the posture of ICAC in this case is the main cause, if not the only cause for the judgement in favour of Pravind Jugnauth (PJ). At paragraph 40 the Law Lords write:

“The Board notes that the Independent Commission against Corruption, which initiated this prosecution, now accepts in its written case on this appeal that it is difficult to see how ‘an internal reallocation of payments source for the external contract’ would be a decision in which Mrs Malhotra would have a personal interest.”

In paragraph 41 the first sentence reads as follows:

“This is sufficient to dispose of this appeal. The prosecution has failed to establish that the defendant’s sister had a personal interest in the decision…”

Is not, what precedes the main argument considered by the Privy Council to reject the appeal? It is revealing that the Privy Council did not mention the arguments of the defendant’s attorney while giving their judgement but only the argument of ICAC. In fact, I do not see any comments of the Law Lords on the arguments of the defendant’s attorney, Claire Montgomery whereas they made comments on the submissions of Mr Perry, who was DPP’s representative.

During the whole conduct of this case before the trial and supreme courts, my understanding was that it is PJ who is accused of conflict of interest in the case because her sister is a shareholder in the company receiving the funds. Now the argument seems to be whether the sister had an interest in the decision of reallocation of the funds because her brother was the one who took such decision. I am at a loss about this finding. I wish our learned lawyers could clarify this matter.

Morally correct?

The Law Lords also do not make any comments on the arguments of Mr Perry about PJ lying in court; about the argument that the whole exercise would have to be started again in 2011 if the funds were not released in December 2010. I believe this was a very strong argument very well explicated by Mr Perry in favour of the DPP.

Mr Perry had also defined section 13(2) and (3) of PoCA and my reading is that the Law Lords were on the same wave length as Mr Perry, contrary to the Supreme Court. This section mentions that the accused should not have participated in any proceedings regarding the matter where a relative or associate has a personal interest. Did not PJ participate in the proceedings by deciding on the reallocation of the funds? Mr Perry again was very explicit on PJ’s participation in the proceedings in violation of PoCA. I do not understand how the Law Lords ignored this argument. In so doing they have created a new Law for Mauritius as their judgement is now a precedent that all Mauritian Courts are bound to follow.

It is worth noting that the Privy Council has on some points not agreed with the Supreme Court’s rejection of the trial court’s findings.

I would also like to highlight one issue which could not be pursued at the Privy Council as this matter was rejected by the trial court and not appealed by the DPP at the Supreme Court. The Trial court concluded that the issue of Capital Gains Tax was not proved by the DPP. How should this issue be proved? It was clear that if the reallocation of funds was not made in December 2010, the seller, in this case MedPoint, would have had to pay Capital Gains Tax of 10% on the sale of the hospital in 2011. If this issue could have been raised at the Privy Council, would the outcome have been different?

The action of PJ is now considered legal; but was it morally correct? This only the public will decide.

Furthermore, let me remind SAJ that during his Prime Ministership in the 80’s he had criticised the judgement made by a Judge of the Supreme Court by stating that the judgement would have been different if decided by another Judge. So, I can say that if the ICAC had not been a turncoat and/or if the Privy Council was composed of five different Law Lords, the outcome could have been different.

The Law Lords are not God; they do not pretend to be God or “Ene tigit pli tipti ki Bon Dieu”; they are just human beings like all of us and they can also err. They do not vote at our elections. Will the outcome of this matter help PJ’s team win the next elections? Only time will tell.