“What has happened also and gone a bit unnoticed is that, on Wednesday, Maya Hanoomanjee, high commissioner to India, stated that she doesn’t have   anything to do with any request that was put to India and that she was not aware of anything. My own conclusion is that she wanted to wash her hands off this whole episode so that she is not implicated in it.”

The revelations made by Sherry Singh (SS) are still front page news two weeks later, each day bringing more revelations. The reactions were extreme. Some think it is a tsunami while others are convinced it’s a storm in a teacup. We asked Rajen Narsinghen, political observer and lecturer in law at the University of Mauritius for his legal and political views on the matter.

First of all, are the revelations made by Sherry Singh a tsunami or a storm in a tea cup?

It’s too early to draw any conclusions but looking at the two interviews of SS and the three or four interventions of the PM, his followers and the ministers supporting the PM, I think at this stage, SS has been able to establish a prima facie case.

Of what?

Of tampering with the SAFE cable.

But SS hasn’t yet shown any evidence for that, has he?

He explained how, for example, the PM phoned him. The PM’s initial reaction was a sort of implicit denial because both the PM and three ministers during the press conference stated that SS did not have the opportunity to speak to the PM. So they were implying the phone call did not take place at all. Later, at Bois Marchand, the PM stated almost the same thing. Then in parliament, when there was the first question, followed up by a supplementary question, that was a leading question put by Xavier Duval, the speaker intervened to stop it. The following day, the speaker came to confess that this was wrong under subsection 5 of the constitution…

Even if the question has already been answered?

If you read section 26 of the constitution, the word ‘elucidates’ is used. This is the rationale behind asking a supplementary question.

But who decides if the question is clear or not? The speaker decided the answer was clear and final. Did he have the right to do that?

No, he cannot. The speaker has a margin of discretion but discretion in law cannot be capricious. It has to be reasonable. Here, the question was to elucidate whether on April 15th at 10.18 am, the prime minister called SS. At any rate, when the PM was cornered, he expressed his regret that he could not explain that in the National Assembly and said, ‘yes I did phone SS and two letters were sent’. Now he’s changed his version

The first version was that he had not talked to SS ‘for a long time’. That’s vague enough, isn’t it? 

From April to July, I don’t think in our normal parlance means a long time. According to me, he was trying to be vague, implicitly denying there was any conversation. It’s only when Xavier Duval put a specific question to him that he tried to reply outside parliament. The sequence is important. Now, we have seen that in the two letters sent, the word ‘survey’ was not used.

“Since the matter has been put in the hands of the police, the PM has put himself in a very delicate situation. The police are investigating SS but who will dare to investigate the PM, take him to task while he is in office?”

But neither was sniffing. So how can we extrapolate from a letter that mentions neither?

(Laughs) I don’t think anyone would ever use that word in a letter and ask: ‘Give us permission to do sniffing’. The letter of SS is very revealing. He shows consistency. Those conversant with the style of drafting in the Civil Service know that the Ref must always convey with precision the gist of the correspondence. Here, in both letters, not a single reference is made to any survey. Even for a simple survey, the official consent of all stakeholders is mandatory. SS seems to have established a prima facie case that he had flagged his concerns regarding national security and that finally under duress he had to succumb to the command of the PM. Now the ball is in the prime minister’s court to bring evidence to rebut SS.

And what do you make of the technical report of Mauritius Telecom chief technical officer (CTO), Girish Guddoy, where he clearly states that no sniffing device had been installed during the intervention at Baie Jacotet?

A logical person would question why a letter would come on July 2. One would expect a technical report to be ready by April 15^th, following the secret visit at Baie de Jacotet. Besides, neither the form nor the contents of the CTO’s letter reflect the level of intelligence which a CTO of such calibre should have. The English is too approximate and it is too short to be a report. All pointers suggest that the person has been forced to sign a letter drafted in poor English and not well structured. As for the CTO’s resignation, it confirms what the leader of the opposition stated in parliament. It is possible that the CTO is a collateral victim in a world of threats and blackmail. As a true patriot, he must tell the truth to the population. By the way, have the officers in the landing station put something in their log book?

Coming back to the procedure to follow, can’t the prime minister talk to another head of state about security problems?

That he can do but SS was the CEO of a publicly listed company. Let’s ignore for the time being the fact that the secretary to cabinet is also the chairman of Mauritius Telecom and, in principle, you cannot put your secretary to cabinet as a chairman of a publicly listed company. Still, the law of good governance means you have to follow the procedures. Here not only was the PM talking to the CEO but so was the secretary to cabinet and the latter also made the same request.

Is there anything illegal in that?

But you are asking a foreigner to get access to sensitive information that has to do with Mauritius! Don’t we have experts at Mauritius Telecom? France Telecom/Orange are partners who have a 40% stake in Mauritius Telecom. It was Alcatel that installed this apparatus, so if you doesn’t have any other motive, you would ask your engineers here, or in France Telecom as a second choice at Alcatel to conduct the so-called survey!

But if India is willing to help you for free, why would you not allow it?

Because of security. We are talking about information from the embassies coming from all countries. You have to make sure it is safe.

The Cyber Crime Act as it was amended does allow foreigners to intervene in relation to security aspects, doesn’t it.

The Cyber Crime Act was amended, I don’t know if it was deliberate or not. Maybe it was deliberate…

So under the new law, is the act of allowing India to intervene still illegal?

Well, this is not a one man show. We cannot have one person unilaterally decide something that important without letting anyone know what the issues are. In Admin law, such matters have to be recorded and minuted. What has happened also and gone a bit unnoticed is that, on Wednesday, Maya Hanoomanjee, high commissioner to India, stated that she doesn’t have   anything to do with any request that was put to India and that she was not aware of anything. My own conclusion is that she wanted to wash her hands off this whole episode so that she is not implicated in it. In any country, if you want technical assistance, it has to go through the proper channels and be on record. This is bad.

“It is a breach of contract re the consortium. But depending on the evidence, if we had a credible police force conducting a proper inquiry, we may end up with an illegal act.”

Is it illegal, though?

Mauritius is not the property of the prime minister just like France doesn’t belong to Macron. He cannot just pick up the phone and there is no trace of what he says to Biden. If tomorrow somebody passes away, there has to be a record of everything done!

If it wasn’t on record, does it systematically imply foul play?

Not necessarily, but now how will Pravind Jugnauth prove it was a genuine survey?

And how will SS prove that it wasn’t?

I think he has evidence that a team of technicians spent six hours onsite. If the PM can prove he has a record of the minister of foreign affairs appraising the ministry, records in the Prime Minister’s Office that mention the word ‘survey’, then there is no problem.

If the word ‘survey’ wasn’t mentioned, is that in itself incriminating?

No but it’s a pointer towards something fishy.

So what? 

In law, you have to look at all the circumstantial evidence. If this was concealed and the word ‘survey’ was not used, then you have to look at the contents of the letters to see what has been said.

If SS had such damning evidence, why didn’t he produce it?

I think at the moment, the PM decided to refer the matter to the police. He could have chosen another option as this is not only a domestic issue but a regional and international one. Best would have been to appoint an international commission of inquiry because you are dealing with many countries in relation to this alleged scandal. Since there are serious allegations, the PM should have seized the opportunity in parliament when Xavier Duval was asking this question to give a full-fledged answer with documentary evidence to show that SS is bluffing.

He says the speaker didn’t allow him to…

Don’t forget that the PM is the leader of the House. He could have made a polite request to be given the opportunity with the speaker’s permission to call off the bluff of SS. Since the matter has been put in the hands of the police, the PM has put himself in a very delicate situation. The police are investigating SS but who will dare to investigate the PM, take him to task while he is in office? So we are in a sort of legal imbroglio. It means it is impossible for the time being to elucidate the matter. Making a parallel with Kistnen’s case, cover up after cover and for sure nothing will come out. So we will have spent huge amounts of public funds for nothing.

In spite of all this, some lawyers believe this is more about a breach of contract than an illegal activity, even assuming the worst. Do you share that view?

No I don’t share that view. It is a breach of contract re the consortium. But depending on the evidence, if we had a credible police force conducting a proper inquiry, we may end up with an illegal act.

Isn’t there also the possibility that SS’s revelations are an illegal act?

SS has also committed a crime on the basis of section 72 of the Criminal Code if it is true that there was sniffing and he authorised third parties to capture the data. But if he did commit a crime, he said he was forced to.

Is that good enough?

If you are going to invoke duress, it has to be something that was impossible to resist; that you were really compelled. How are you going to convince the court it was irresistible? He was under terrible pressure from the PM and secretary to cabinet, but whether that’s enough is another matter. Here, it is important to note that even the PM is not a director of Mauritius

Telecom and therefore, he cannot give directives to Mr SS even for a survey. He has to make a proper request, the request goes to the board of directors, they check whether it’s reasonable and feasible and if it is, they accede to it and then the company allows it. In this case, Mauritius Telecom is not the owner of the cable.

But the other owners don’t seem to care; they didn’t even want to make a statement.

In theory, this company has suffered a prejudice and can sue the government and Mauritius Telecom.

So why is Orange as a shareholder keeping quiet? Aren’t they guilty of not defending the interests of their shareholders?

Maybe they will use the procedures internally in their shareholders’ meeting because there is also a shareholders’ agreement between Orange and the other shareholders, so we cannot preempt what they are likely to do.

As things stand, who is likely to win this war?

From the STC to St Louis, Kistnen and Angus Road, the moment you send the case to the CCID or the Independent Commission Against Corruption, the game is over. The matter will drag on and the public will not know anything about it. It’s only if a future government takes over that we may know something about it.

SS did not mention any names regarding which country is involved. It was the prime minister who did. Why?

When you are in difficulty, you have to find a rope to save your life. I think it is wrong to blame India or the Indian PM; our sovereignty depends on us. You can listen to advice as a PM but there is absolutely no excuse to be subdued to the request of any country, whatever that country may be.

Where is the act of tsunami?

It will depend on the evidence. I have told you of the cumbersome procedures to do with the police. So the tsunami may come only if the police does a serious inquiry, which will not happen. My reading of the political situation is if SS has evidence and he shows it, the tsunami will come. But for now, there will be no tsunami because the matter is in the hands of the police so it will go through the washing machine. However, if people from the government start attacking SS, the tsunami will come then.