‘Of course, ICAC has a duty to investigate, but how it does it is another matter’

The Molnupiravir Saga

Qs & As

* ‘ICAC is not accountable to anybody or institution except to public opinion’

By Lex

While several high-profile investigations of cases with political ramifications are still awaiting completion, the ICAC has been handed another hot potato with investigations ordered in the Molnupiravir saga. New twists and revelations indicate that the schemes to defraud public funds under fabricated emergency procedures may go beyond high-level pharmaceutical officers and may require auditioning of higher politico-administrative levels. The institution has wide-ranging powers and some moral obligation to undertake its task fearlessly but has it the gumption to do so remains to be demonstrated. Lex delves into the legal parameters surrounding such investigations by our only financial crime investigation authority.

* The Molnupiravir Saga and investigation are taking another turn with the Registrar of the Pharmacy Board and Principal Pharmacist, Brijrendrasing Naeck, implicating the top guns of the Ministry of Health for allegedly creating an “artificial shortage” of Covid drugs, thereby leading to a “State of Emergency” procurement of the drug, far in excess of the requirements of the Health services. Investigators will need to sort out the truth from the half-truths or even lies, if any, in this saga. How should investigators committed to get to the bottom of this matter go about unearthing the truth from what appears to be cross-linked processes leading to the procurements?

Well, the only investigator in this matter is the Independent Commission Against Corruption (ICAC). It is up to it, given the powers it has under the Prevention of Corruption Act 2002 (POCA) to use all means possible to go to the bottom of the case without sparing anybody.

* Does the ICAC have a duty to investigate into any suspected case of corruption brought to its attention by any other State agency or of its own volition, and does the law provide for a time limit within which it should submit its report thereon?

Unfortunately, there is no time limit. Without playing politics, we have seen investigations into suspected corruption that have a political backdrop being jettisoned to oblivion.

Of course, ICAC has a duty to investigate, but how it does it is another matter. There two strands to an investigation; the first one which requires honesty and integrity which means that all avenues of a suspected case of corruption will be investigated, irrespective of who the suspects are. The second one is where the investigation starts on the premise that some individual/s have to be protected.

The success of an investigation depends on which strand ICAC takes.

* The POCA lays down the procedures and rules for conducting investigations into suspected cases of corruption and money laundering. It also extends to ICAC different powers, namely the power of entry and search premises, that of arrest as well as property tracking and monitoring order; it may also apply for an attachment order, carry out the seizure of movable property, etc. Would you say that these rules and procedures and the powers conferred to it are sufficient and effective tools that should allow the ICAC to fulfil its mandate?

I would refer you to R. Laxman, who wrote in this paper on 4 February 2019 the following:

‘It is one thing to have any number of institutions in a country – but which hardly perform the role for which they have been designed. It is quite another thing when institutions function efficiently to fulfill their mandate fearlessly.’

The POCA confers wide powers on ICAC to investigate cases of corruption and other financial crimes. Section 56 states that “where the Commission decides to proceed with further investigations… the Director-General may order any person to attend before him for the purpose of being examined orally in relation to any matter; order any person to produce before him any book, document, record or article; order that information which is stored in a computer, disc, cassette, or on microfilm, or preserved by any mechanical or electronic device, be communicated in a form in which it can be taken away and which is visible and legible; by written notice, order a person to furnish a statement in writing made on oath or affirmation setting out all information which may be required under the notice.”

Everything therefore depends on whether the ICAC is willing to use these powers in the right direction or not. Take the ‘Molnupiravir Saga’, as you call it. What has ICAC done so far? Summoning public officers and interviewing them under warning. We know there is high powered committee that monitors all purchases of drugs to fight the Covid pandemic. Has ICAC summoned any member of that committee? Has ICAC searched the premises of that high powered committee?

* However, we have to admit that corruption is regarded as one of the most difficult crimes to investigate given its secretive nature involving usually two or more parties having no incentive to divulge the truth, the dearth of evidence in many cases or even witnesses, and also involving at times powerful suspects who can also be ruthless in enforcing a code of silence through intimidation and violence. What’s your take on that?

Corruption is indeed one of the most complex offences to investigate as it involves vested interests. Both the corruptor and the corrupted have a vested interest in not divulging the truth as they are both in a win-win situation. Omerta would be the rule as prescribed in the mafia code. Had not a whistle blower divulged the Molnupiravir underbelly, no one would have been aware of the scandal and its ramifications.

POCA has a provision for the protection of informers. Is there a law to protect whistleblowers especially in the public service?

Any informer or whistleblower takes a big risk in denouncing corruption, especially corruption at a high level in the public service that may involve politicians. The whistleblower or informer runs the risk of losing his job if his identity Technotronics Ltd is disclosed or becomes known. Who will take that risk? Particularly if threats of violence become the weapon of the day?

* The Hong Kong ICAC, popularly regarded as a successful model in fighting corruption, is not only empowered to investigate corruption offences both in the government and private sector, it can investigate all crimes which are connected with corruption; there is also an elaborate check and balance system to prevent abuse of such wide power. What about our own ICAC?

Our own ICAC is not accountable to anybody or institution except to public opinion. The only exception is the power given to the Parliamentary Committee on ICAC. That Parliamentary Committee has the power to monitor and review the manner in which ICAC fulfils its functions, review the budgetary estimates of the institution; issue such instructions as it considers appropriate with regard to finances, resources and staffing, issue guidelines and give general directives to the Commission with regard to the manner in which the Commission is to perform its functions and exercise its powers.

It also receives reports from the Commission at such intervals as the Parliamentary Committee may require; makes a report to the Assembly where the Committee considers that it is expedient that the attention of the Assembly be directed to the manner in which the Commission is discharging its functions. And where the Parliamentary Committee issues a guideline under Section 61 (4), the Chairperson of the Committee shall lay the guideline on the table of the Assembly within 14 days from the date on which such guideline was issued. Has any guideline ever been tabled in the assembly?

These are wide powers of the Parliamentary Committee. Has that committee ever exercised those functions? If so, with what results?

* Tony Kwok Man-Wai, former Deputy Commissioner of the HK ICAC states that given the politically sensitive nature of many corruption investigations and the embarrassment they may cause to governments, such investigations can only be effective if they are truly independent and free from undue interference. ‘This depends very much on whether there is top political will to fight corruption in the country, and whether the head of the anti-corruption agency has the moral courage to stand against any interference.’ We do not seem to have ever met that standard here, isn’t it?

I will again refer to what R. Laxman wrote in this very paper on 4 February 2019:

‘It is not that under-performing countries where the rule of law prevails do not have a plethora of similar institutions that exist in well-reputed countries. They have them all. But those institutions fail to live up to their mission either because political powers that be have scorched them or because their top levels fall short of the mental and moral fibre required to do what should be done. Efficiently functioning institutions are what differentiate countries that achieve and those that do not.’

If ICAC is not allowed or does not of its own volition carry out its mandate as prescribed by the law, then it is the end of the fight against corruption. The legislation will just be a piece of cosmetic on the statute book. There must be a political will to combat corruption to the hilt. There must also be a ferociously independent ICAC to do so.

* We have often seen here since the time when the first anti-corruption agency was set up many individuals, some high-profile ones, getting caught in the media limelight once an investigation has been started. Some have even been arrested and searches made in their homes and offices. Isn’t it fair that the reputation of these individuals be preserved before there is clear evidence of any corrupt offence having been committed by them?

Once somebody is arrested and cleared, ultimately the stigma of that arrest will stick to him for a long time or forever. This is particularly true in Mauritius which is a small country. This why any investigative authority must be very careful before summoning or arresting a person.

* We understand that in instances where the ICAC decides to proceed with any further investigation, the investigation shall be carried out under the responsibility of the Director-General. What happens if it decides to discontinue any investigation? Is it the end of the matter?

The matter is far from clear. As a rule, once an investigation is terminated, a report has to be submitted to the Director of Public Prosecutions (DPP) whatever the recommendation of the ICAC may be.

The POCA provides in Section 82 that no prosecution for an offence under POCA shall be instituted except by, or with the consent of, the DPP. That presupposes that an investigation has been completed and submitted to the DPP. But if investigations take years or are shelved, is there a duty of ICAC to inform the DPP? The answer is in the negative.

* Published in print edition on 14 January 2022

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