Mauritius: "The commission of inquiry will not only revive a defunct witch-hunt but is also akin to a contempt of the Privy Council decision"

This week, we sit with Sanjay Bhuckory, SC and political observer to talk about the various legal issues making the headlines as well as the political situation in general. An interview with no sitting on the fence, to be read in one stretch.

"The Privy Council judgment has squarely laid the blame on the State Trading Corporation for this debacle. But let us be realistic and recognise that the STC was a mere agent of its political masters, who were hell bent on dismantling the Betamax contract."

A commission of inquiry on Betamax came as a surprise to many people. How do you feel about it? Après la mort, la tisane, another political vendetta or a much needed commission?

As far as I am concerned, the Privy Council judgment has settled all possible legal issues, and has put an end to all disputes. The ping pong blame game between those who awarded the contract and those who rescinded it had better stop. It is time for the country to move on. Legally, a commission of inquiry will add nothing new. But politically, it will be exploited to find scapegoats, settle scores and detract us from the prevailing catastrophic economic situation.

Aren't there new things the commission can bring to light?

In 2015, the incumbent government resorted to every possible means under the sun to impeach the main protagonists of the Betamax contract. Thus, the former prime minister, a minister, civil servants and the head of Betamax were arrested and charged. Subsequently, the DPP abandoned all charges against them. Eventually, the Privy Council, aligning itself with the Arbitrator, found no impropriety and declared the contract legal. The commission of inquiry will not only revive a defunct witch-hunt, but is also akin to a contempt of the Privy Council decision. This will send an evil signal to foreign investors, who will see us as a country bent on circumventing international arbitral awards and Privy Council judgments.

Who do you personally hold responsible for the nearly Rs6 billion we have had to fork out to Betamax?

The Privy Council judgment has squarely laid the blame on the State Trading Corporation for this debacle. But let us be realistic and recognise that the STC was a mere agent of its political masters, who were hell bent on dismantling the Betamax contract by hook or by crook. As to which particular minister was the henchman is now academic. It was the collective responsibility of those at the highest echelon of the State, for which Betamax has been more than adequately compensated.

Should arbitration have been included in the contract, though?

Arbitration is faster, more efficient and procedurally less cumbersome than court litigation. Parties have better control over the process in that they can choose a specialised arbitrator and agree that his award would be final and binding, thereby putting an end to any further appeal - as was the case in the Betamax arbitration before the Singapore International Arbitration Centre. The finality of an arbitral award is attractive, as it avoids the uncertainty, cost and delay caused by appeals.

How is our own arbitration centre doing?

Mauritius lags miserably behind 'state of the art' arbitration centres like London, Singapore and Dubai. We lack the basic human resources, knowhow and expertise. In the wake of the Betamax case, our reputation has suffered a fatal blow, as we are now perceived as a country which is intent on avoiding and delaying the enforcement of arbitral awards at all costs. The reopening of the Betamax contract, through the setting up of the commission of inquiry, has proved to be the coup the grâce. This will undoubtedly scare off potential investors, whose primary concern is predictability and certainty. These safeguards have now vanished in thin air.

"I abhor the practice of bypassing the Solicitor General whenever his opinion does not suit government's agenda."

Former Minister of Good Governance Roshi Bhadain brandished a document during an interview on a private radio. The document clearly shows that one senior attorney and one senior barrister advised the government to challenge the arbitrator's decision in the Supreme Court. Does that kind of advice flout the elementary principle of arbitration?

I fail to comprehend why private legal advisers' opinions, erroneous for that, were sought at the expense of the Solicitor General's, who is government's principal legal adviser. This begs the question of whether the Solicitor General's views were sought in the first place and if so, what was their tenor and why private legal advisers were resorted to.

The Solicitor General's views were apparently sought but ignored...

I abhor the practice of bypassing the Solicitor General whenever his opinion does not suit government's agenda. This practice has, of late, become quite recurrent. The same subterfuge was resorted to during the Illovo Deal in 2001, when the then government opted for a private legal opinion, at the expense of the unpalatable Solicitor General's, in order to grant a hefty capital gains tax relief to a sugar conglomerate. But this is all academic now, as the Privy Council has already validated the parties' recourse to arbitration, which was not only inevitable, but was final and conclusive.

Would an Economic Offenders' Act as proposed at the last election help in situations like these?

The proposal to adopt an Economic Offenders Act was made by the Labour Party in its electoral manifesto of 2019. The idea is that public officials would be held personally accountable for dilapidating public funds through their unlawful acts or abuse of authority. There already exist provisions in our Prevention of Corruption Act and our Criminal Code Act to deal criminally with public officials' corrupt acts or abuse of authority. The question is whether the scope of the law should be extended so as to render such officials civilly responsible also. I have not come across any existing foreign legislation to that effect.

What is the recourse currently open to citizens?

Under our Civil Code, it is possible to sue a public official personally for the negligent act committed during the course of his duties if such act is 'étranger au service', i.e. falls outside the scope of the public official's duties.

Just as we forked out about Rs6 billion to Betamax, Dawood Rawat's case in Belgium fell through. Your comments?

The Belgian Court has rejected Mr Rawat's application to set aside an Arbitral Tribunal's award to the effect that he was, by virtue of his dual Mauritian and French nationalities, not protected by the Traité Bilatéral d'Investissement (TBI) France-Maurice, which prohibits Mauritius from expropriating a French national's investments (here the BAI), and imposes a duty on Mauritius to treat such investment in a fair and just manner. It would be interesting to see how, should the case proceed to appeal, the question will finally be resolved.

"Business leaders have become adaptable and complacent, not to say spineless. It is against their nature to rub government the wrong way."

How do you think it's likely to be resolved?

It is difficult to predict as it involves complex legal issues. On the other hand, I am of the view that the circumstances leading to the orchestrated demise of the BAI are fit for a commission of inquiry as many burning questions have remained unanswered.

Like what?

Like whether the government's dismemberment of the BAI was justified, whether the alleged Ponzi scheme truly existed, and whether fair negotiations and viable alternative solutions were considered by government.

For the election petitions, Anne ma sœur Anne...

Ma soeur Anne can now have a glimmer of hope as the election petition for constituency No. 14 is nearly over and that for No. 8 has just started on the merits. She should nonetheless keep her fingers crossed and hope that the various other petitions will share the same fate.

In an opinion piece entitled « Betamax : Les Truands, Les Brutes et Nous bons Couillons », Senior Counsel Hervé Duval talks about the business community as being "un spectateur - tantôt impuissant, tantôt complice - des égarements du pouvoir en matière de gouvernance". Do you feel the business community could do more by calling out the government about its abuses?

The business community is generally loathe to voice its opinion, save when its interest is directly affected, as was the case during the Covid lockdowns. It normally plays safe, keeping a foothold in both government and the opposition, as power alternates regularly here. As a result, business leaders have become adaptable and complacent, not to say spineless. It is against their nature to rub government the wrong way. Let us not count on them to walk the cocktail talk.

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