ICAC’s Parliamentary Committee
“The perception in the public is that ICAC is not functioning independently.
Why, it may be asked, but this would be a rhetorical question”
By LEX
The performance of the institution set up in 2002 to help combat corruption and money-laundering, ICAC, has been under the scanner recently with a large number of high-profile cases that have been reportedly sent its way. Despite a sizable budget and experienced investigative staff, the general perception in the public is that it is not living up to expectations. Wherein lies the problem, the governing law, the mode of appointment of the DG, the parliamentary monitoring mechanism, or the inherent complexity of financial scams that elude its investigative powers? We have asked LEX to weigh in.
* The Independent Commission Against Corruption (ICAC) has lately been heard proceeding apace with the investigation into the case of alleged corruption in the St Louis Power Station Redevelopment Project. Bertrand Lagesse, head of AMB Lagesse Business and Engineering Consultancy, and Philippe Hao Thyn Chuan Ha Shun of PAD Co had been called, late May 2021, for further inquiries. Whether this would qualify as a complex inquiry or not and why it is taking so long for ICAC to conclude the investigation are not known, but things are moving… and that should be sufficient, isn’t it?
Financial crimes are not easy to investigate in view of their complexity and ramifications. Today financial crimes are not frontier-bound ; they have become transnational. This necessitates international assistance, and requests for mutual assistance may give rise to legal issues in the country that receives the request for assistance. Of course there are financial crimes which have a local component only, and these should move quickly as far as the investigation is concerned.
* The Prevention of Corruption Act 2002 does not seem to provide for any oversight mechanism that could have monitored the ICAC at its operational level, especially as regards the conduct of investigations. Moreover, Section 20 (2) & (3) provides that ‘The Commission shall act independently, impartially, fairly and in the public interest’, and ‘Subject to this Act, the Director-General shall not be under the control, direction of any other person or authority’ respectively. Is it in the public interest that such should be the case?
Yes, it is in the public interest, and for the sake of the integrity of investigations it is necessary that an institution that is mandated to fight financial crimes should be independent and not be under the control or authority of anybody or any other institution. The only monitoring mechanism resides in the people who man ICAC. How they do it and how the public react to their actions can be said toconstitute a form of monitoring.
* Moreover, Section 19 (4) provides for the appointment of the Director-General of ICAC by the Prime Minister after consultation with the Leader of the Opposition. It does not seem the Director-General enjoys the same constitutional protection as the Director of Public Prosecutions or of Judges. Without putting in doubt the integrity of the holder of the post, this may place the Director-General of ICAC in an uncomfortable position vis-à-vis the head of government, isn’t it?
An institution is an inert body. It becomes functional and operative when persons are appointed to man it. Its function depends on how the person so appointed does it. Independence is a state of mind. If the head of ICAC decides to jettison his independence and kow-tows to orders or instructions from the person who appointed him, then the only solution is to shut down the institution.
* We have not heard from Opposition politicians, now or during the time when they were at the helm of the affairs of the country, taking issue with this state of affairs and taking any corrective measures. All politicians want to have the ICAC under their thumb, right?
We do not know whether all politicians want ICAC to be under their thumb. The Prevention of Corruption Act 2002 guarantees the independence of ICAC. We have never had under any previous regime since ICAC was established such a perception of a total lack of independence from ICAC when it comes to some specific investigations. It is a real cause for concern.
* The Prevention of Corruption Act 2002 has also provided for a Parliamentary Committee, ‘composed of 9 members, 5 of whom shall be designated by the Prime Minister and 4 of whom shall be designated by the Leader of the Opposition’, whose functions is to ‘monitor and review the manner in which the Commission fulfils its functions, but cannot intervene nor interfere in any ‘specific case under investigation by the Commission’. Opposition members on that Committee have expressed dissatisfaction with its workings and the irregular or delayed holding of meetings. What would this suggest?
This is what appears on the website of ICAC: ‘The Parliamentary Committee monitors and reviews the manner in which the Commission fulfills its functions under the Act, reviews the budgetary estimates of the Commission, and issues such instructions as it considers appropriate with regard to the financial management, and the staffing requirements of the Commission, as well as the allocation of resources to the various operations of the Commission.’
The Parliamentary Committee’s role does not extend to monitoring a matter related to any investigation being carried out by ICAC or the findings of the Commission in relation to a particular investigation. The ICAC accounts for its investigative decisions through a separate mechanism, i.e. to the judiciary.
The question may be asked as to whether since the formation of the new government in 2019 and the composition of the Parliamentary Committee, the Committee is living up to its mandate. It would appear this has not been the case, hence the dissatisfaction of the members of the Opposition.
The impression is that the government, the parliamentary Committee and ICAC constitute a close-knit confederation.
* We have seen recently the Integrity Reporting Services Agency dragging the ICAC to Court for failure to furnish it with detailed reports on cases of unexplained wealth. Could the Opposition, if it wanted to make its voices heard within the Committee and ensure that it is allowed to carry out the functions as prescribed by the Act, have in the same manner gone to the Supreme Court for redress?
The parliamentary Committee is an emanation of Parliament, and it is unlikely that the Supreme Court would intervene in the manner in which it functions. But there is no harm in trying by filing a test case.
On the other hand, the case filed against ICAC by the Integrity Reporting Services Agency concerns an administrative matter in the sense that ICAC as an institution, outside the purview of Parliament, as regards its powers, apparently failed to submit detailed reports on certain matters to the Agency. Let us wait for the outcome.
* Section 20 (1) f & g prescribe that the functions of the ICAC shall be to, inter alia, ‘monitor… the implementation of any contract awarded by a public body, with a view to ensuring that no irregularity or impropriety is involved therein’; and ‘examine the practices and procedures of any public body in order to facilitate the discovery of acts of corruption and to secure the revision of methods of work or procedures which, in its opinion, may be conducive to corruption’. That seems to be too heavy a load on the shoulders of the Commission, isn’t it, what with so many cases still under investigation?
There is no doubt that ICAC is confronted with a whole load of cases. It has quite a numerous staff. If ICAC carries out its function without guette figir and in total independence from the government, it could have achieved more.
* After all is said, will it be correct to say that The Prevention of Corruption Act 2002 does provide the adequate framework and mechanism to fight corruption?
The law is there. Its proper functioning depends on the holders of power within the ICAC. The perception in the public is that it is not functioning independently. Why, it may be asked, but this would be a rhetorical question.
* Published in print edition on 8 June 2021
An Appeal
Dear Reader
65 years ago Mauritius Times was founded with a resolve to fight for justice and fairness and the advancement of the public good. It has never deviated from this principle no matter how daunting the challenges and how costly the price it has had to pay at different times of our history.
With print journalism struggling to keep afloat due to falling advertising revenues and the wide availability of free sources of information, it is crucially important for the Mauritius Times to survive and prosper. We can only continue doing it with the support of our readers.
The best way you can support our efforts is to take a subscription or by making a recurring donation through a Standing Order to our non-profit Foundation.
Thank you.
