IN THE SUPREME COURT OF MAURITIUS IN THE MATTER OF S.N. 1047/2015 SATYAJIT BOOLELL Applicant ove . THE INDEPENDENT COMMISSION AGAINST CORRUPTION * 2. THE COMMISSIONER OF POLICE i Respondents And in the presence of THE MINISTRY OF HOUSING AND LANDS Co-Respondent ——S AFFIDAVIT IN REPLY OF THE APPLICANT |, Satyajit Boolell, Director of Public Prosecutions, residing at Wilson Road, Vacoas, holder of NIC No B311257010543A MAKE SOLEMN AFFIRMATION AS AHINDU and say as follows, 1. Lam solemnly affirming this affidavit in reply to the affidavits of Respondent No.1 and Respondent No. 2 sworn on 22 July 2015 and 3 August respectively. 2. | have taken cognizance of the contents of the said affidavits of the Respondents, hereinafter referred to as R1A1 and R2A1.Assertions in support of Applicant's version 3. | observe that Mr. Chimunlall Ghoorah, the Director of the Corruption Investigation Division of Respondent No.1, confirms in certain important respects my account of our discussions in the Board Room of the Office of the DPP on Monday 43 July 2016 at about 11h30. For example, it is noteworthy that, at paragraph 26 of R1A1, he agrees that he referred to the two Ministers in that conversation. 4. Furthermore, Mr. Ghoorah also confirms at paragraph 25 of R1A1, on behalf ‘of the Director General of Respondent No.1, that during a telephone call to me on Friday 10 July 2015, the Director General told me that Respondent No.1 was being subjected to tremendous pressure in connection with my case. Mr. Ghoorah asserts, again apparently on behalf of the Director General, that by this "pressure" the Director General meant the ordinary pressures of his job, which, he states, are “tremendous’. 5. At paragraph 26 c) of R1A1, Mr. Ghoorah further suggests that he had told me that the officers of Respondent No.1 were “constantly under pressure and by pressure | was referring to public scrutiny and the obligation to discharge my duties in an efficient manner”. 6. Laver that, in the context of the case, it would be extremely surprising, if these senior officers of Respondent No.1, both of whom agree that they each specifically told me they were under pressure, and one of whom mentioned the two political ministers, should merely have been referring to the usual pressures of their employment in a high profile agency. 7. On the contrary, | aver that both of these gentlemen intended to leave me with the unequivocal impression that they were being subjected to highly unusual pressures. In particular, despite the fact that Mr Ghoorah believed that there was no case against me and that Respondent No. 1 had received preliminary advice that there was insufficient evidence, he informed me that it had been decided that | mustattend Respondent No. 1's offices to give a statement under warning, for which purpose he wished to serve me with the formal convocation. 8. Given the nature of my position and the critical importance of retaining public confidence, | pointed out to Mr. Ghoorah, who agreed that, if | were to be interviewed under warning, there would be an implication that a Provisional Charge would ensue and that | would be unable to carry out the functions and responsibilities of my office and would be obliged to consider stepping down. 9. In this connection, | aver that it is in the public interest, and in full and frank disclosure, for Respondent No. 1 to reveal the contents of the Preliminary Report of Mr Ghoorah, on which report Respondent No. 1 would have based itself to initiate further investigation 10. | therefore aver that the decisions by Respondent No. 1 ()_ toconvene me to ICAC Headquarters; (i) to proceed with further investigations under section 46 (3) POCA, and (iii) to require me to make a statement under warning, were unlawful and ultra vires because they lacked any proper and reasonable foundation and/or were not made for the purpose for which the powers were granted by the Act but for a collateral and oblique motive, namely to embarrass me in my office of DPP and to leave me with no choice but to resign. | further aver that it was incumbent on Respondent No. 1 to pay heed to the express provisions of section 93 of the Constitution in relation to this specific alleged investigation. In the main case, | will be seeking orders from the Supreme Court of Mauritius, inter alia, for the issue of the writs of certiorari to quash the said decisions and prohibition to prevent similar action on the same grounds. Referral by Co-Respondent to ICAC11, At Annex A of R1A1 is the letter of referral, dated 6 July 2015, sent by the Chief Executive of Co-Respondent to Respondent No.1. It is expressed to have been made because, ‘the Adviser on legal matters of the Ministry has advised, today, that the case be referred to your organisation for potential cases of “Conflict of Interest’, “Public Officer using office/position for gratification” and “conspiracy to defraud the Ministry.” 12. | aver that it is axiomatic that a decision of a public body, exercising its statutory duties, must be rational and taken in good faith. Therefore, the decision to refer the Sun Tan Hotels Pty Ltd (hereinafter referred to as ‘Sun Tan’) matter to Respondent No.1 can only have been made if the Senior Chief Executive genuinely held the opinion, in good faith, that an act of corruption may have occurred and that opinion had been based upon objective grounds capable of giving rise to reasonable suspicion that an offence had been committed by me. | aver that no such grounds existed so that the decision could not have been made in good faith for the purposes of the POCA. 13. Similarly, the scheme and structure of section 46 POCA provides for an expeditious preliminary investigation of any referral within 21 days. Thereafter pursuant to section 46(3), the Commission must take a decision whether to proceed with “further investigations" or to discontinue the investigation. These provisions were enacted in this way no doubt partly to ensure that the prejudice to the position of the public officer, and to the public interest, from a groundless allegation would be of short duration. Respondent No.1 has a duty to act rationally and in good faith in the pul terest and could only take a decision to proceed with a further investigation if, at the conclusion of the preliminary investigation, there are objective and reasonable grounds to suspect that further inquiry will establish the commission of an offence under the Act. 14. | aver that the facts relied upon by Respondent No.1 do not disclose objective and reasonable grounds to justify that further inquiry will establish that offences have been committed under sections 9 and 13 (2) POCA. On the contrary, they demonstrate the exact opposite.15. At paragraph 15 of R1A1, Mr. Ghoorah sets out the facts and matters on which he says, at paragraph 26 of R1A1, that Respondent No.1 exclusively relied in teaching its decision to proceed with further investigations. At paragraph 26 a) of R1A1, he sets out the "possibilities" of criminal offences under POCA to which he contends the facts which paragraph 15 of R1A1 give rise to, First, he suggests that "pressure could have been exercised for the Co-Respondent to cancel the first letter and substitute it with the second letter in order for the State Law Office to disregard the first letter that was sent by Co-Respondent and for the advice be issued. The advice which was eventually issued by the State Law Office was on more advantageous terms to Sun Tan Hotels Pty Ltd and clearly on a different basis of assessment as set out in the first advice tendered by Applicant in 2008, hence warranting pursuing further investigation for a possible offence under section 9 of POCA:" 16. Secondly, he suggests, "the Applicant could have committed a section 13(2) offence under POCA". He continues, ‘the prime factor that has to be ascertained at the level of the investigation is whether the Applicant was acting within his private capacity or as a public official." 17. | aver that neither of these two “possibilities” of offences under section 9 and section 13(2) POCA can reasonably be deduced from the facts and matters set out at paragraph 15 of R1A1, which are wholly insufficient to afford reasonable grounds to suspect that a crime has been committed. No ground to suspect an offence under section 9 POCA 18. For ease of reference, section 9 POCA is reproduced: "9. Influencing publie official Any person who exercises any form of violence, or pressure by means of threat, upon a public official, with a view to the performance, by that public official, of any act in the execution of his functions or duties, or the non- performance, by that public official, of any such act, shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years." 18. | aver that Mr. Ghoorah fails to acknowledge, at his paragraph 26 a) of R1A1, that section 9 POCA does not make it an offence to exert pressure on a public : AG ZLofficial unless that pressure is created by a threat. The making of a threat is a material ingredient of the offence created by section 9, which material element is not disclosed in the averments of Mr Ghoorah in R1A1. However, Respondent No.1 does not even assert in its affidavit that a threat was made or that it has any evidence whatsoever that | might have threatened, intentionally or otherwise, either Mr. Oozeer or any other public official 20. | aver that it is important to note that had Mr. Oozeer said that | had threatened him or exerted pressure on him, Mr. Ghoorah would have been bound to disclose it in R1A1 21, Therefore, | aver that the whole case of ICAC as regards section 9 is based on hearsay and inadmissible evidence. Furthermore, | aver that nothing contained in R1A1 could constitute evidence that | had uttered a threat. 22. _ | therefore aver that this missing element is so fundamental a requirement of the law that no reasonable public authority such as Respondent No.1, properly directing itself as to the relevant law and excluding all irrelevant or extraneous considerations, could have concluded in good faith, after the preliminary investigation, that a proper basis existed for further investigations of an offence under section 9. It is not open to Respondent No.1 to ignore the clear outcome of its preliminary investigation, without identifying a rational basis for doing so, in the hope that something might turn up. No ground to suspect an offence under section 13(2) POCA 23. Section 13(2) provides, “(2) 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 proceedings of that public body relating to such decision.”24. As Mr. Ghoorah recognises at paragraph 26 a) ii) of R1A1, "the prime factor that has to be ascertained at the level of the investigation is whether the Applicant was acting within his private capacity or as a public official.” However, | aver that there can be no doubt, on the facts known to Respondent No.1, that | was acting purely in my private capacity in attending the meeting on 19 July 2011 to make representations on behalf of the company and was not in a position to "take part in any proceedings" of the Ministry of Housing and Lands relating to the decision, for the following reasons. 25. First, as it admits at paragraphs 15 (f) and (h) of R1A1, the unequivocal evidence before Respondent No.1 is that | was present at the meeting explicitly for the purpose of “representing the company” and not in my official capacity as DPP. The minute prepared on 29 July 2011 by Mr. Seebun to Mr. Teckman, at annex F to R1A1, reads, “You will recall back that we had a meeting on Tuesday 19th July 2011 under the Chair of Permanent Secretary in the presence of C.T.O. Maitre S. Boolell, D.P.P. & Messr F. Hossen & others representing the company were present." 26. Further, at Paragraph 15 h) of the R1A1, it is averred that, "In the statements given to Respondent No 1, Mr. Teckman and Mr Seebun stated that the representatives of the company "Sun Tan Hotels Pty Ltd", having attended the meeting of 19" July 2011, were amongst others Mr. Farook Hossen and the Applicant.” (underline supplied). 27. A copy of the minutes of the Board meeting of Sun Tan held on 3rd March 2010 is annexed to R1A1. It reads, "The Board unanimously delegated the power to the Chairman Mr. Farouk Hossen and one of the directors namely Mr. Satyajit Boolell to deal with the Ministry of Housing and Lands being the lessor and with the Notary withindemnity. These centred upon whether the doctrine of facite reconduction applied Thus, in referring to the "lessee" having made representations on the subject of the indemnity, it is clear that the Officers of the Ministry well appreciated that my representations were made as a private citizen on the company's behalf. 30. Furthermore, | aver that, as Director of Public Prosecutions, | had no official function or responsibility in the context of a decision of the Ministry to grant or renew leases of State land. $1. | aver that there is no reasonable foundation for the ‘possibility’ which Mr, Ghoorah holds out, namely that | may have committed the offence of "Conflict of Interests" under section 13(2) POCA, 32. Mr. Ghoorah asserts on behalf of Respondent No.1 that there is a question to be resolved by the proposed further investigations as to “whether / was acting in my Private capacity or as a public officia’. Yet, there is simply no rational basis for the conclusion that | could have acted in anything other than my private capacity in 8carrying out the tasks on behalf of the company for which its Board had delegated me. Applicant's Legal Advice of 2008 33. | aver that, ex facie R1A1, Respondent No.1 labours under a further fundamental misapprehension of the advice of 2008 about the matter of Sun Tan, which seems to be central to its assumptions. Mr. Ghoorah suggests at paragraph 26 a) that, “The advice which was eventually issued by the State Law Office was on more advantageous terms to Sun Tan Hotels Pty Ltd and clearly on @ different basis of assessment as set out in the first advice tendered by Applicant in 2008...” 34, If this is a genuine misunderstanding then it is, indeed, fundamental because it does not compare like with like. | aver that my Advice, dated 27 October 2008, related to the issue of the general policy to be adopted, in the light of the then recent Finance (Miscellaneous Provisions) Act, towards the obligations to be demanded of a former lessee where an industrial lease had expired prior to 19 July 2008 and the former lessee was seeking the renewal of the existing industrial lease on the same conditions except as to rent. Under these circumstances, no lease would have been in existence and no obligation to pay rent; the issue then arose as to what rent or “indemnity” should the lessees pay pending the renewal of their existing industrial leases. 35. | aver that, that was not the situation of Sun Tan. In 2010, Sun Tan, was not Seeking the renewal of the existing industrial lease but the grant ab initio of an entirely new lease for a "Syndicat de Co-Proprietaires", [See Annex E and .. of RIA] to take account of the "changement de destination" from a hotel to a bungalow complex, which had occurred at the time when the project was developed, some 15 years ago. In these circumstances and conditions, by virtue of Article 1738 of the Code Civil Mauricien, a new lease came into existence on the same terms as to rent, but for an indefinite duration, until cancelled, Being given that the bungalow complex was completely incompatible with the initial lease, a new lease had to bedrawn up in the name of a "Syndicat de Co-Proprietaires” to be formed. Thus, there was no room in the case of Sun Tan for an "indemnity" to be charged because by operation of the law there was in existence a subsisting lease that already fixed a rent payable by the company. 36. | further aver that it is abundantly clear that Respondent No.1 has been unable or unwilling to appreciate the fundamental distinction of law between these two situations. As the Deputy Solicitor General, Mr. Rajesh Ramloll, observed at paragraph 10 (d) of an affidavit sworn by him on 30 July 2015 [Annex Ml], Respondent No.1's assertion at paragraph 26 a) is a "gross over-simplification of the issues involved and is inaccurate in law, as it disregards the fact that the previous advice tendered by the Applicant in the Main Case focused on the policy issue relating to the "indemnity" payable and not on the application of the legal principle of "tacite reconduction" arising out of the particular facts of the case." 37. Thus, my Advice of 27 October 2008 was wholly irrelevant to the issue of law upon which I had made representations to the Ministry on behalf of the company and upon which Mr, Ramioll was called to give his opinion, It is noteworthy that Mr. Ramloll concluded that the principle of tacite reconduction applied. Mr Ramloll gave his advice independently, objectively and without influence from anyone, as he says in his affidavit at paragraph 10 (e) *at no time have | been under any pressure or threat nor have | given consideration to anything else than the strict application of the law of the land as it would apply to the facts of the case.” No ground to suspect a conspiracy 38. | aver that the crude and baseless insinuation contained in R1A1 to the effect that Mr Ramloll and | may have colluded to procure an advantage for Sun Tan is simply absurd. As borne out in the affidavit of Mr Ramiloll, he gave the advice freely. Further, as Mr. Ramioll says himself, at paragraph 10 (a) of his affidavit, he was allocated the file because he was the relevant desk officer, designated by the Solicitor General, for the Ministry of Housing and Lands. It was the Solicitor General himself who received it from the Registry and personally referred the file to him for 10that reason. No other fact or matter is cited by Mr. Ghoorah in R1A1 that could lead to a reasonable ground to suspect that | had conspired with Mr. Ramioll or with any other person unlawfully 39. Therefore, | aver that the suggestion made by Mr. Ghoorah on behalf of Respondent No.1 that "in the course of the enquiry there may also be the possibility of finding evidence that may lead to an inference that a conspiracy offence has been consumed (emphasis added)" is nothing more than crude speculation. There is no rational basis for such a suggestion. | aver that it would, in the normal course of events, be astonishing that a responsible public body such as the Independent Commission Against Corruption should be willing even to entertain the formal articulation of such an allegation against a Director of Public Prosecutions and the Deputy Solicitor General, with all the attendant damage to the public interest, on such a spurious and non-existent foundation without even first having checked with the Solicitor General's Office as to the true position and as to what advice had been given when similar cases had been referred to the Attorney General's Office. Improper and Oblique Motives 40. | have set out in my first Affidavit (hereinafter referred to as 'AA1’) the reasons that led me to aver to the Honourable Judge sitting in Chambers that improper and oblique motives lie behind the actions of Respondent No.1 and Co-Respondent. | maintain those averments and aver that first, no reasonable authority could properly take the view that there were grounds to suspect me of having committed a crime. 41. Secondly, | aver that before taking any decisions under the POCA, both Co- Respondent and Respondent No.1, as responsible public authorities, were obliged to consider carefully the public interest in maintaining public confidence in the office of DPP and the administration of justice. Prior to taking any step that might undermine the public interest, it was incumbent upon them to anxiously scrutinise and verify with great care the basis of their decisions. Yet, those precautions were not deployed and | respectfully aver that the evidence discloses a precipitate haste to move to a full criminal investigation and to require me to give a statement under warning and to 1provisionally charge me before making the elementary checks that would have demonstrated its lack of foundation. 42. Thirdly, there is a strong inference from the lack of any adequate basis for the decisions of Co-Respondent and Respondent No.1, and from the surrounding circumstances and events, that improper motives exist for the actions taken against me. 43. | aver that the history of events and the circumstances surrounding the referral by Co-Respondent, the decisions of Respondent No.1 and the proceedings before the Honourable Judge Sitting in Chambers in the Habeas Corpus case [SN 1068/15] support the inference that there existed a preconceived objective to remove me from office. For this purpose, it will be necessary to ensure that | am made a suspect in a criminal inquiry and required to make a statement under warning, in the full glare of publicity. The file will then be sent to me for a decision as to whether action is justified against myself. By these means, it will be made impossible for me to retain public confidence and to continue as DPP. 44. | also aver that the referral by Co-Respondent was expressly based solely on the advice of the politically appointed adviser to the Minister, who subsequently gave an interview to the press about the basis of his advice [Annex K of AA‘, which | aver was calculated to undermine public confidence in my office and which was wrong in law, misleading as to the facts and a breach of the duty of confidentiality owed by a Barrister in such circumstances. 45. Moreover, bearing in mind the admissions of Mr Ghoorah regarding his opinion that there is no case against me, coupled with his belief that pressures were being exerted on Respondent No. 1, the latter could not have possessed a genuine belief that | had committed an offence which would justify a further investigation. 46. Fourthly, as | have averred at paragraphs 4 to 7 above, both the Director General and the Director of the Corruption Investigation Division of Respondent No.1 informed me they were under tremendous pressure to take action against me. Mr Ghoorah was explicit in saying that he had advised for some time that he did not see 2case against me. Contrary to the contents of paragraph 25 of R1A1, both sought to reassure me that although | would have to give my account, nothing adverse would happen to me thereafter. If Respondent No.1 possessed a genuine belief, held in good faith, that 1 had committed an offence, it is inconceivable that such observations could properly be made. As | have averred in AA1, an approach was made to me by a retired judge to induce me to step down as DPP, in which case no further consequences would follow. Mr Ghoorah clearly told me, at our meeting of 13 July 2015, that Respondent No.1 had indeed consulted the said retired judge for advice concerning my case and the latter had opined that the enquiry was “stil blurred” 47. Fifthly, | aver that despite Respondent No.1’s denial of responsibility for the press reports that revealed highly confidential details of Respondent No.1's consideration and investigation of the referral made by the Ministry of Housing, the inescapable inference is that the details as reported in the press could only have emanated from Respondent No.1. For example, on 12 July 2015, the Edition of Weekend [Annex L of AAt] reported that Respondent No.1 had made the decision to proceed with further investigations and that | would have to be interviewed under warning, It described the affair as “ce scandele entrainant le DPP dans une spirale” and speculated that as a result of these decisions, | would have to step aside pending the resolution of the investigation by my office, As | have previously averred, on 13 July, Mr Ghoorah confirmed to me that those decisions had indeed been taken 48, | aver that on the same day, at or about 11.30 a.m., | declined to accept the letter of convocation from Mr Ghoorah's hand; that fact too was reported in Le Mauricien that afternoon at or about 4.30 p.m, | have set out the detail of this article at paragraph 52 of AA. Since no other person is empowered to have access to this information, these matters could only have emanated from within Respondent No.1 and, if so, their dissemination amounted to a breach of section 81 POCA. 49. | am not aware that any investigation has been conducted by or within Respondent No.1 to determine how the above details reached the press and — GL \whether, as seems likely, @ serious criminal offence under section 81 POCA has been committed. 50. On 14 July 2015, Le Mauricien had reported that members of the Board of Respondent No.1 were about to resign [Annex NJ. It reported sources “bien informées" as Gérives de procédures dans le déroulement des enquétos ie font ressortir Fee nclans des as précédents de difficultés de convocation, TICAG avait fait usage de la maniére forte », pamuption. La section 2 de la POCA ne fait qu'une seule exception avec timmunité accordée au Président de la République » 51. _ In this context, Ms. Shakilla Jungeer, one of the three members of the Board of Respondent No.1, who include the Director General, issued a communiqué dated 14 July 2018 [Annex PJ. in 2014, Ms. Jhungeer had been Presented to the press, and announced in Le Weekend of 23 March 2014 [Annex Q], as a member of the now governing political party, the MSM. In her communiqué, she stated that in her view, ‘Timplication de Me Satyajit Boolel, le DPP, a ét6 labia”. No investigation has yet been held as to whether, as seems at least strongly arguable, by issuing this Communiqué, Ms. Jhungeer committed an offence under section 81(3) POCA, However, she was one of those who took the decisions of Respondent No.1, which decisions | shall challenge by way of a main case, and she remaine a member of the Board of Respondent No.1 after she withdrew her resignation 52, The constant release of so much detailed, damaging and misleading information about the allegations against me and about the Progress of Respondent No.1's investigations, which appeared over several weeks and culminated in the Teports of 12 and 13 July, served the purpose of arousing great uncertainty and 4undermining public confidence in my ability to perform the vital responsibilities of my office. I aver that the numerous and damaging disclosures could not have been merely coincidental and inadvertent but were designed to exert Pressure and to create an atmosphere in which it would be untenable for me to remain as D.P.P. 53. Following the application dated 14 July 2018, on the afternoon of 15 July 2015, Honourable Ministers Soodhun and Bhadain made a complaint to the CCID alleging that | had sworn a false affidavit against them and had thus committed a criminal offence. They requested a police inquiry. Le Mauricion of that same date Pictured them as they entered or left the building and a reporter at the scene [Annex Ri], who plainly must have been aware in advance of their mission, quoted their Comments. In consequence of their complaint, despite the fact that the Honourable sludge sitting in Chambers had not yet adjudicated on the issues raised by the affidavit and on the matters before it and that | was not charged before any Court, a “warrant to apprehend a party charged" was sought and obtained by the police for my arrest based solely on the assertion of the said two Ministers as to their lack of involvement in placing pressure on Respondent No.1 [Annex Ri]. Yet, at the time of making their complaint, neither the Ministers nor the police could have known whether Mr. Ghoorah had, indeed, mentioned their names to me and expressed the said belief or not. 54. _At paragraph 25 of R1A1, Mr Ghoorah avers that on 18 July, he had been Interviewed by the police about the matter and had merely told them that he could not comment because the issue was sub judice. However, at the surprising hour of 2.30 a.m. on 16 July, he says the police called again at his home and, at 5.55 am., he gave another statement, the nature of which he does not divulge (although he now admits that he did mention to me the names of the two Ministers). | aver that | have strong reasons to believe that the second statement given by Mr Ghoorah contradicts his averments in his affidavit R1A1, 55. | aver that it is most disturbing that just 15 minutes later, at 6.10 am., Le Mauricien published a short report on its Twitter feed, ‘Le DPP, Me Satyajit Boolell en état darrestation ce matin par le CCID pour avoir Juré un faux affidavit’. [Annex Ss) 4556. In fact Le Mauricien’s report was premature. It was not until about 8.a.m. that a group of at least six police officers came to my home to arrest me. The Honourable Judge in Chambers set aside the warrant and further ordered that the police should refrain from arresting me in connection with matter raised in At pending the determination of the present Application. 57. | aver that if at all a coincidence, it is a disturbing coincidence that the frustrated attempt by Respondent No 1 to bring about an investigation, and my convocation for a statement under warning on such negligible grounds, was followed immediately by an attempt by the police, on the complaint of the two ministers, with such extraordinary urgency, to have me arrested on a wholly misconceived charge of swearing a false affidavit, once again, in the full glare of orchestrated publicity. | further aver that the police procured, and acted upon, an unlawful ‘warrant to apprehend a party charged’ 58. _ Since that time, | have been the subject of repeated political comments. On 1 ‘August 2015, the leader of Ms. Jhungeer’s political party, the Honourable P. Jugnauth, held a press conference in which, despite the fact that these very issues were before the Honourable Judge sitting in Chambers, he was reported to have made the following comments, which appeared in Weekend of the following day, «Le leader du MSM a laissé entendre que la crise institutionnelle dans Taffaire du DPP, est un faux débat: "Parce que ICAC veut interroger le DPP, on convient que cela reléve d'une crise institutionnelle !" Pravind Jugnauth a dit ne pas comprendre pourquoi le DPP refuse de donner sa version des faits aux enquéteurs de I!CAC, alors quill y a Prima Facie Case. "Je ne comprends pas ce refus. Ki fer li pe per ? Je laisse au peuple de juger si Justice must not only be done, but must be seen to be done et si je principe que nous sommes fous égaux devant la loi est une vraie perception.” [Annex T] 59. On the Facebook website of that political party have appeared, with the consent of the administrator, a number of hostile and defamatory comments, including, on 5 August 2015, the following, “Directeur des Poursuites Publiques ou Directeur de Sun Tan Ltd ?? Rs 45,000 ou Rs 1.6 million ??? Bar council ou Bar Chacha 777??? Boolell DPP ou Boolell Macarena 77?" [Annex U] 1660. | aver that | have always exercised the functions and duties of my office of D.P.P. with complete impartiality and independence and with scrupulous regard for its reputation and integrity. | shall continue to do so to the best of my ability. The constitutional independence of my office and its freedom to perform its of law in the Republic of Mauritius. | do not seek the Court's intervention out of any fear whatsoever of scrutiny of my acts on behalf of Sun Tan but because | verily believe that the further investigations of Respondent No.1 are unlawful and an abuse of power. The said further investigations are wholly unfounded in law and there was and is no material before Respondent No.1 that could justify the decisions and actions it has taken Specific averments in reply to R1A1 61. _ I take note of paragraphs 1 to 4 of R1A1. In relation to paragraph 3 of R1A1, | aver that Respondent No.1 has failed to make a full and frank disclosure as regards the following, inter alia: (1) The tenor of the Statement of Mr Oozeer; (2) No explanation was given as regards Respondent No.1’s failure to record a ‘statement from Mr Ramloll of the Attorney General's Office; (3) The recommendations of the Director of Investigations in the preliminary report to the effect that there was no case against me, and (4) The Legal advice of the Legal Adviser of Respondent No 1 to the effect that there was no case against me 62. In reply to paragraphs 5 to 12 of R1A1, | maintain my averments at paragraphs 9 to 19 of AA1. 63. I deny paragraph 13 of R1A1 and maintain my averments at paragraph 20 of AA. Further, the referral from the Ministry was made on the basis of advice given by the legal adviser to the Ministry, who is a political nominee and member of MSM and without the benefit of the advice of the Office of the Attorney General. The proper 7 GO.channel, in line with the established practice, is for the Ministry to seek advice from the Office of the Attorney General before referring the matter to Respondent No.1, the more so since central to the present matter are advices tendered on behalf of the Attorney General. | further record that ICAC has failed, in paragraph 13, to address ‘our averment regarding the conduct of the investigation. 64. | deny paragraph 14 of R1A1 and reiterate my averments at paragraph 59 of the present affidavit. 65. In further reply to the averment at paragraph 14 of R1A1 that my version would have been given utmost consideration, | aver that it was Mr Ghoorah himself who informed me when he called at my office that | would have to give a statement under warning and accepted that it was likely that | would be provisionally charged there and then. Mr Ghoorah even suggested that | should seek redress from the Supreme Court. 66. Finally, paragraphs 13 and 14 of R1A1 are misconceived because, as averred at paragraph 13 above, the obligation of Respondent No.1 on receiving a referral under section 46 POCA is to carry out a preliminary investigation within 21 days and then to decide whether to proceed to further investigations or not. There is no obligation to continue to carry out further investigations unless a proper basis exists within the preliminary report to suspect a crime has been committed, It is clear that the intention behind the provisions is that there should be a rapid assessment of whether there might be any substance in the allegation and to that end it is incumbent on the investigators to follow up obvious lines of inquiry prior to making their preliminary report. In this case, | aver that the obvious enquiries should have been made with the Attorney General's Office before making the decision required by section 48 POCA. 67. | deny paragraphs 18 and 15(a) of R1A1, which | aver are inaccurate and shows the complete misunderstanding by Respondent No. 1 of the facts relating to Sun Tan. | aver that it is in fact Sun Tan that owns the bungalows. Therefore it is incorrect and misleading to state that she “also” owns a bungalow, when in fact my wife can only own shares in the company, which holds the right under the lease and 18which caused, in or about the year 2000, a number of bungalows to be built on the leased property, 68. Further, | aver that contrary to what has been widely reported in the media, neither my wife, nor |, have received state land (Pas Geometriques) at Palmar, nor have we had anything to do with the construction and/or Promotion of a hotel or of a Bungalow complex thereat. Moreover, | aver that neither my wife nor | have had anything to do with the setting up of the company by the name of Sun Tan Pty Limited, 89. _ From the information | have been able to gather, | am given to understand that Sun Tan was constituted in the year 1987 and had initially two shareholders, namely Dr Krishnalall Coonjan and Mr.8oodman Bahorun . It was Mr Bahorun who applied for and obtained in February 1987 Pas Geometriques at Palmar for the construction of @ hotel project. No hotel was ever built and the company changed ownership several times as evidenced in the chronology detailed at Annex V. 70. In the year 2001, my wife and | came into contact with the then shareholders of the company, who had built 12 bungalows on the site. My wife purchased shares giving right to the occupation of a bungalow and she was accordingly allocated shares in the company representing the “quote part" of one out of twelve bungalows. The seller, who was also the promoter of the project, remained shareholder and was ‘eSpensible for the management of the company for some 10 years thereafter. 71. Laver that in or about the year 2010, it came to the notice of the shareholders of Sun Tan that the existing industrial lease had expired in 2007 and that a new rent Statutorily provided under the Finance Act 2008 would be applicable. It appeared that ‘he promoter had opted for a new 60 year lease as was then being proposed by the Government. It however became evident to the shareholders, that the expired lease was totally inappropriate as it was destined for a hotel complex and had to be replaced by an entirely new lease adapted to a bungalow complex in the name of a “Syndicat de Co-Proprietaires" to be formed. 1972. The Board of Directors of Sun Tan which comprised of the representatives of the 12 bungalows, delegated 3 board members which included the Chairman and myself, to make representations to the Ministry of Housing to issue an entirely new bungalow lease of sixty years in the name of “syndicat des co-proprietaires". The main purpose of the discussions was to reflect the fact that the industrial lease was totally inappropriate for the operations on site, which were those of individually owned bungalows. 73. For reasons | have explained above, | aver that | attended the meeting of the 19 July 2011 with the Ministry in my capacity as a private citizen with other representatives of the company with a view to making representations in respect of property which my wife and | own . Furthermore, | aver that, as Director of Public Prosecutions, | had no official function or responsibility in the context of a decision of the Ministry to grant or renew leases of State land. 74. | further aver that it was always made clear to the Ministry that the company would pay the new statutory rate whatever be the amount, as soon as it was issued witha new lease on terms and conditions to be agreed - an exercise which has not materialised up to now, some eight years after the expiry of the initial lease. 75. | deny paragraphs 16(b) and (c) of R1A1, which | aver are again inaccurate and show Respondent No.1's serial misconceptions. First, | was not asked to give advice on the legality of an indemnity but on the practical course of action to be followed when an industrial lease had expired and the former lessee had sought its renewal. Secondly, in 2008, the Ministry did not seek advice from me but from the State Law Office. The request could only have been sent to the Solicitor General who alone in law can discharge the duties of the Attorney General as the Principal Legal Adviser of Government. | aver that this was the process adopted for the advice tendered in 2008 and the advice was tendered in the name of the Solicitor General on behalf of the Attorney General. 76. | deny paragraph 15(d) of R1A1 and reiterate that the averments thereof are irrelevant for the reasons set out at paragraphs 34 to 37 above, to the extent that the issue of indemnity fee was not applicable to the present case. | further aver that had 20Attorney General's Office to clarify its assumptions, it would not have reached the same conclusions. 77. 1 admit Paragraphs 15(e) and (f) of R1A1 and aver that we were all "Spresentatives of Sun Tan who had been duly mandated by the Board of Directors to meet with the Ministry. 78. | take note of paragraphs 15(g) and (h) of R1A1 Which are internal records of Co-Respondent and which | have never seen. | further reiterate paragraphs 25 to 27 above. 79. I deny paragraph 15() of R1A1 and | aver that it 's absurd that Respondent No.1 should draw sinister inferences therefrom, 80. I deny paragraph 15() of R1A1 and again aver that, in any event, no sinister inferences can properly be drawn therefrom. | refer to Paragraph 10 (b) of Mr Ramiol's affidavit which, | aver, puts the issue to rest Gisclosure of the full picture as it deliberately omits to state the actual version of the then Permanent Secretary, who is alleged to have made the remark, but instead is based on hearsay. | further reiterate my averments at Paragraphs 19 to 22 above. 83. In reply to the averments contained at paragraph 15(m) of R1A1, | aver that | am not aware of the internal activities within the Co-Respondent, and that in any being sought in 2012 Pa ge84. | take note of the averments contained at paragraph 16(n) of R1A1. | refer to the affidavit affirmed by Mr Ramloll at Annex: M. 85. _ | record Respondent No.1's admission at paragraph 16 of R1A1. | further aver that if the matter was indeed stil under investigation and that it was, as a result, still possible for Respondent No.1 to seek the versions of the Attorney General's Office, as is being averred at paragraph 16 of R1A1, there was no reason for Respondent No.1 to convene me, let alone insist that | give a statement under warning, as it was planning to do. | aver that the inescapable inference is that Respondent No.1 was under pressure to convene me to take a statement under warning, notwithstanding the fact that its investigation had not revealed anything incriminating against me or was incomplete, as it is now claiming, 86, | deny paragraph 17 of R1At and present affidavit. | aver that Respondent No.1 cannot, under the provisions of the POCA, have a duty to “consider every complaint and/or allegation...". | aver that Respondent No.1 has a duty to act rationally and in good faith in the public interest. | further aver that Respondent No.1 should not have entertained a referral made without good faith and/or any rational basis, | further reiterate paragraphs 13 and 14 above. 87, 1 deny paragraph 18 of R1A1 and maintain that each averments at paragraphs 27 and 28 of AA‘ are material. 88. | deny paragraph 19 of R1A1 and maintain my averments at paragraph 29 of (AA and further aver that I have on file, confidential information which, with the leave of the Honourable Judge sitting in Chambers, | would be prepared to disclose in support of my averments. 89, | deny paragraphs 20 and 21 of R1A1 and maintain my averments at paragraphs 30 and 31 of AA1, | further reiterate my averments at paragraphs 27 to 35 above. 90. | deny paragraph 22 of R1A1 and aver that, on the contrary, these are televant matters that put in context Respondent No.1's improperly motivated 22investigation and its resulting calls made publicly by certain members of Government that I should step down from my post as Director of Public Prosecutions. 91. | take note of paragraph 23 of R1A1 and in particular, the claim of Respondent No.1 that it cannot be responsible for the publication of the press articles referred thereat. | further reiterate my averments at paragraph 47 of the present affidavit. 92. | take note of paragraph 24 of R1A1 and maintain my averments at paragraph 34 of AA1. 93. | take note of paragraph 25 of R1A1 and maintain my averments at paragraph 35 of AAI. | further aver that the pressure that the Director General referred to in his conversation to me was the pressure on Respondent No.1 to proceed with a further investigation even though there was nothing incriminating against me. | further aver that Mr Ghoorah was not privy to my conversation with Director General and cannot therefore make any averments in relation thereto 94. | record the admissions of Mr Ghoorah at paragraph 26 of R1A1, and take note that my averments at paragraph 36 of AA1 have not been denied. | further aver that Mr Ghoorah even informed me that the Chief Counsel of Respondent No.1 had advised that the investigation had disclosed no offence. 95. I deny paragraphs 26(a)(i) and (ii) of R1A1, which are speculative, | reiterate my averments at paragraphs 24 to 35 above. | further aver that Mr Ghoorah has deliberately omitted to mention the contents of his statement given to the police at 5.55 in the morning. As regards paragraph 26(a)(ii) of R1A1, | aver that these are matters that are not within the purview of POCA. At any rate, | deny having committed any offences at all 96. | take note of paragraph 26(b) of R1A1 and record that Respondent No.1 provides no justification whatsoever as to why it decided to proceed with a further Investigation, when by the admission of Mr Ghoorah, there was no incriminating evidence against me after the Preliminary Investigation. | further aver that 23 4Respondent No.1 was quite able to take the decision to arrest me without first seeking my advice for prosecution. | further reiterate paragraphs 14 and 16 of AA1 97. I deny paragraph 26(c) of R1A1, which is at complete variance with what Mr Ghoorah in fact said to me, and | therefore maintain my averments at paragraph 36 of AY 98. In respect of paragraph 27 of R1A1, it is not clear what Respondent No.1 means. Mr. Ghoorah did tell me that it had been decided that my statement would have to be recorded under warning, for which purpose he wished to serve me with the letter of convocation. However, he did not inform me that this “course of action would only have been taken after having reviewed all the evidence gathered prior to Applicant's examination”. If these averments intend to mean that | might not have been required to give a statement under warning, it is completely contrary to what Mr Ghoorah told me. Furthermore, had it been the case that Respondent No.1 would be reviewing all the evidence gathered prior to my examination, then one is left to wonder why | have in fact been convened at the time and in the manner in which | was convened. 99, As regards paragraph 28 of R1A\1, | deny that I refused to accept the letter. | aver that | declined to receive it from the hand of Mr. Ghoorah rather than through the proper procedure. 100. | take note of paragraph 29 of R1A1. 101. | deny paragraphs 30 and 31 of R1A1 and maintain my averments at paragraphs 37 and 38 of AA‘. | aver that it is not sufficient for Respondent No.1 to state simply its investigation is strictly compliant with the provisions of POCA and being conducted with seriousness without averting any reasonable justification whatsoever therefor. | aver that the facts and matters on which it purported to rely in taking its decisions to proceed to further investigations and to require me to give a statement under warning are wholly and manifestly inadequate in law to give rise to reasonable grounds to suspect that I have committed an offence. 24102. | record Respondent No.1’s admissions at paragraph 32 of R1A1 and aver further that the fact that there has not been any complaint from the Ministry until now is a material element in assessing the meaning and effect of the statements given by the officers of the Ministry. 403. | record Respondent No.1’s admissions at paragraph 33 of R1A1. 404. | take note of paragraph 34 of R1A1 and maintain paragraphs 41 and 42 of AAI 405. | take note of paragraph 35 of R1A1. | reiterate that it is not sufficient for Respondent No.1 to state simply its investigation is strictly compliant with the provisions of POCA and being conducted with seriousness without averring any reasons or justifications whatsoever therefor. | further reiterate paragraph 39 above. 106, | maintain my averments at paragraph 44 of AA1 in reply to paragraph 36 of R1A1 407. I deny paragraphs 37 and 38 of R1A1 and maintain paragraphs 45, 46 and 47 of AA(. | further aver that under POCA, Respondent No.1 is bound by law to refer its recommendations to me, as Director of Public Prosecutions, and not, as it avers, to the Office of the Director of Public Prosecutions. The power to decide whether to prosecute or not is vested with the Director of Public Prosecutions under the Constitution of Mauritius and can only be exercised by other persons in accordance with my general or specific instructions. | aver that this is precisely why the Constitution provides the procedure in respect of the Director of Public Prosecutions under its section 93. 108. | deny paragraphs 39 and 40 of R1A1. | aver that if Mr Ghoorah is correct, then, having regard to the public interest, it is even more surprising that Respondent No.1 decided to require me to give a statement under warning when it could not have been sure at that point (or indeed now), “when it is still af the stage of gathering evidence’, that the investigation would indeed reveal anything incriminating against me. Indeed, as | have averred above, there is and was never a proper basis to 25Proceed to further investigations after the preliminary investigation had been concluded. | aver that, in the light of the averments at paragraph 36 of AA1 and 40 Of the present affidavit, | have not benefitted and cannot benefit from an impartial enquiry. 109. | maintain Paragraph 49 of AA1 in reply to Paragraph 41 of R1A1 which is denied and aver that is relevant for the reasons that | have given at paragraphs 44 and 63 above. 110. I maintain paragraph 50 of AA‘ in reply to paragraph 42 of RIA1 I note that, despite its professed concem, Respondent No.1 does not appear to have conducted an inquiry to determine whether an offence has been committed under section 81 POCA, 111. I take note of Respondent No.1's admission at Paragraph 43 of R1A1 112. In reply to paragraphs 44, 45, 46 and 47 of R1A1 which are denied, | maintain mY averments at paragraphs 52, 53, 64 and 85 of AA\. | further reiterate that itis not Sufficient for Respondent No.1 to simply state its investigation is strictly compliant with the law and being conducted with appropriate seriousness without averting any reasons or justifications whatsoever therefor. 113. | take note of paragraph 48 of R1A1, 114. I take note of paragraph 49 of R1A1 and maintain my averments at paragraph 58 of AAT 118. I deny paragraph 50, 51, §2, 53 and $4 of RIA for the reasons | have averred above. | further specifically deny that | have falled to disclose any facts set out under paragraph 15, when the convocation merely required me to give a statement. Specific averments in reply to R2A1 26116. In reply to paragraph 9 of R2A1, which is denied, | maintain my averments at paragraphs 37, 46, 47 and 48 of AA1 117. In reply to paragraphs 11 and 12 of R2A1, which are denied, | maintain my averments at paragraph 58 of AA1 118, | maintain paragraphs 59 and 60 of AA1 and further pray that the present Interim Order be enlarged and made interlocutory. Solemnly affirmed by the abovenamed deponent At Chambers Supreme Court Port Louis This 07 September 2015 Before me Master and Regis! Suprem! Applicant's Attorney The present affidavit is being affirmed in connection with an application before the Honourable Judge sitting in Chambers. -K.Dwarka, SA Applicant's Attorney 7