Among the decisions taken by the Cabinet on 9th October, there is a reference to note having been taken of the proposed introduction of a Good Governance and Integrity Reporting Bill by the Minister of Financial Services and Good Governance. It is stated that one of the Bill’s objects will be ’to disclose and deter malpractices and recover unexplained wealth’.
We have not seen a copy of the proposed Bill. There are press reports however which indicate that its principal quest will be to go after ‘unexplained wealth’. What this means is that it will involve identifying wealth accumulation by persons in both the public and private sectors who would be seen to be having more wealth than it would appear reasonable from their ordinary source/s of income.
According to the press reports, the aim of the government would be to set up two bodies, an Office of Good Governance (OGG) in the Ministry of Financial Services headed by a high-ranking public official, and an independent Integrity Reporting Committee (IRC) headed by a retired judge of the Supreme Court or from the Commonwealth appointed by the Prime Minister, to be supported by two other members appointed by the Minister of Financial Services and Good Governance.
The job of the OGG would be to receive reports regarding presumed cases of malpractices in matters of good governance or unexplained wealth accumulation, and to evaluate them. This body will summon any person suspected of involvement in the malpractices and the amassing of unexplained wealth to provide explanations in the matter. It is stated that the legislation will target Mauritians exclusively, to the exclusion of foreign investors.
Before taking the matter further forward, however, the OGG will submit its findings to the IRC for scrutiny. The latter would then apply for an interim judge’s decision to proceed in the matter, seeking a Disclosure Order pertaining to additional information to be obtained on the assets and other properties of the party (including related or suspected parties) subject to the investigation for unexplained wealth. Alternatively, the IRC may seek to obtain an order for civil recovery of the unexplained wealth so that the properties so seized shall be vested in the OGG. It is stated in the press reports that, according to the Minister, the interim judge’s decisions so obtained may be challenged by the concerned parties in the Supreme Court. According to the press reports, the Bill also makes provision for rewards to be granted to whistleblowers involved in cases of malpractice and accumulation of unexplained wealth.
The Bill would also be making it an obligation on a whole range of public office holders – including a judge or a magistrate, the Ombudsman, the Director of Public Prosecutions, the Director of the Financial Intelligence Unit, the Director of the Independent Commission against Corruption, the Director-General of the Mauritius Revenue Authority (MRA), the Governor of the Bank of Mauritius and all Integrity Reporting Officers – to make a report in writing about cases of unexplained wealth to the OGG. All of these would therefore be subordinated to report to the OGG set up in the Ministry. The reporting would presumably trigger investigations into such reported cases.
According to the press reports, another objective of the government is to enact the legislation expeditiously. This could mean that the government might be prioritizing action on certain cases which it may believe would fall under the umbrella of the proposed legislation.
As a matter of general principle, it would not be misplaced to call to account all wealth and property accumulated by persons, which cannot be justified to have emanated from legitimate sources. As a further matter of principle, since the history of ill-gotten wealth goes back in time, a question arises as to how far such a legislation, if it were fairly enacted, will travel into the past so as not to appear to be selectively targeted. To be fair, it would be expected to demonstrate that all cases of apparently ill-gotten wealth will be scrutinised and submitted to the processes intended to be put in place.
While there should be no objection to bringing under scrutiny suspected cases of ill-gotten wealth, urgent consideration should be given to the interpretation that might be given to putting such a responsibility on a body emanating from within a Ministry, i.e., a body falling under the responsibility of a politician. This aspect of being a ministerial body will be more significant in view of the seizure and possibly disposal powers of seized property the OGG would have of what would be deemed to be unexplained wealth.
It is the reason why investigating bodies like the Independent Commission against Corruption or the Police, for that matter, or the FIU have not been placed under the direct responsibility of Ministers. Like the financial regulators, they are administered and governed by their respective legislations and those in charge are held directly accountable for their charges, errors and omissions, without political interference. This strict line of demarcation between wielders of political power and the independent governance of public institutions falling in distinct ministerial portfolios can make the whole difference under a rule-of-law concept.
In practice, ill-gotten wealth can emanate from diverse sources. This is why when it occurs to the Mauritius Revenue Authority (MRA) that a person is ostensibly much better endowed than what his declaration of income for tax purposes shows, the MRA sets up an inquiry into such cases to recover taxes that would have been underpaid. Likewise, there are safeguards such as the Assets Recovery Act and the provisions of the Dangerous Drugs Act which enable the concerned authorities to track down criminally derived wealth and to follow the laid-down processes for their recovery. All the enforcement procedures are executed independently and free of potential political interference and it will be good for the country to continue travelling on this road.
Even though it is being said that the proposed legislation will target residents alone, the risk that it will send the wrong signal across the board exists. In such cases, perception of political vindictiveness travels much above the actual practice and that includes foreign associates of locally indicted businessmen. Anybody could arbitrarily be pulled into the legal machine currently being installed, his public image sullied without justification only to be cleared eventually, if that is the case, when the real damage has been inflicted already.
We have enjoyed internationally the image of a rule-of-law jurisdiction for having refused to go to the extremes others have gone to, employing the legal dispositions to castigate and punish political adversaries selectively. Our judiciary, hemmed in by the Privy Council, has helped to uphold this kind of a politically-free law-abiding image of the country and its institutions. Many countries have lost this kind of international goodwill when politicians have uncouthly stepped in. As such countries have become increasingly unpredictable, they have also become unattractive as places for doing business.
Our aim should be to preserve the sound architecture we have inherited in our case and not throw it out to secure some temporary thrills about being a high-sounding paragon of virtues while constantly evacuating thereby real substance from out of the economy. Let’s keep to our productive agenda. Let’s grapple with problems of criminality but, for God’s sake, let us not put ourselves in a position to repent when the damage to our good standing has already been done… beyond repairs.