“The FCC: Same old vinegar in a new bottle, but with a political appointee shielded from accountability”

Interview: Satyajit Boolell, Former DPP

‘The FCC may be cast aside as being unconstitutional. It is an attempt to circumvent section 72 of the Constitution by a simple legislation’

* CP vs DPP: ‘The rule of law should prevail over everything else’

* Private prosecutions: ‘The considerations of the DPP remains the same for all cases: the evidence test and the public interest test’

* ‘If we carry on transferring the responsibility for deciding criminal offences to other investigative bodies, we might as well close down the Office of the DPP’

Former Director of Public Prosecutions Satyajit Boolell does not mince words in his comments on the Financial Services Commission Bill, tabled last week, and that will come up for debate next Tuesday in the National Assembly. Of particular concern to Mr Boolell are the provisions that “shift the control of prosecutorial powers (from the DPP) albeit for one category of crime to a political appointee” – the head of the FCC, who shall be appointed by the Prime Minister and therefore could be subjected to political influence. He is also of the view in light of its provisions “the FCC may be cast aside as being unconstitutional” given that it’s “an attempt to circumvent section 72 (of the Constitution) by a simple legislation”. Read on:

Mauritius Times: It would seem that the loud protests over the Financial Crimes Commission (FCC) boils down to the real possibility that we might end up with another ICAC, which already suffers from a trust deficit, and would be in no way more accountable than the present anti-corruption agency, but much more powerful and might constitute a threat to civil liberties. Do you think that’s a correct assessment of what’s in the offing?

Satyajit Boolell: The ICAC has indeed a poor track record, and this is why it is difficult to comprehend why its powers are being extensively increased and the scope of offences under its responsibilities/ responsibility extended to all financial crimes.

Given the complexity and scale of financial crimes worldwide, and the advent of artificial Intelligence, I was hoping to see a modern piece of legislation based on international best practices of transparency, accountability and guarantees of independence. Instead, the FCC Bill adopts textually existing statutes namely GGIRA, ICAC, FIAMLA, ARA. It is the same old vinegar in a new bottle.

Of serious concern, we shall have a political appointee shielded from accountability when investigations are not triggered or discontinued.

It may look an innocuous piece of legislation and government will be surfing on the argument that indeed Section 72 provides “for another or authority to institute proceedings”. But in substance this is not what’s happening since the powers of the DPP to decide whether to prosecute financial crimes will be removed and these powers are being vested in a political appointee who could be subjected to political influence.

I am worried that a political appointee will, under the Bill, be vested with powers of surveillance and interception of our communications if he satisfies a Judge in an ex parte application that there are reasonable suspicions – a very low threshold that such a need exists. There are no safeguards, and provisions of the law are quite vague.

* There’s also the shadow of the Prosecution Commission hovering over the FCC provisions. Would it be correct to say that we might see a revised version of the Prosecution Commission coming by the backdoor?

The Prosecution Commission pertained to the whole prosecutorial powers of the DPP, whilst the FCC Bill pertains only to powers of the DPP as far as financial crimes are concerned.

But I can see what your question is aiming at because, as I have mentioned earlier, in substance the powers of the DPP are being drastically curtailed.

It is a well-established legal requirement under the Courts Act, that all cases referred to the Intermediate Court need a referral from the DPP. Except for cases where the DPP has delegated his powers, all case files destined for prosecution must be submitted to the DPP for his final advice and decision.

In addition, in several statutes the legislator has deemed it fit to provide that the consent of the DPP is a condition sine qua non to make assurance doubly sure that inappropriate prosecution can occur. This is the situation with respect to offences under the Information and Communication Technologies Act. Why then do we need a departure from established practice the more so that we are dealing with even more serious offences, such as corruption, fraud, money laundering, cybercrime, proceeds of crime and the financing of drugs. Why is the DPP denied the right to appeal?

* Without personalizing the issue, does it matter who heads the Commission? Shouldn’t it instead be about whether the conditions have been set for an efficient and independent functioning of the organization?

Certainly, it matters greatly. The DG of the commission will have no security of tenure since he will be appointed on contractual terms to be decided by the Prime Minister. There is no guarantee of his independence and instead a very real possibility of political interference in the discharge of his duties. More insidious and problematic is clause 7(5) (a) where it is provided that the appointment of the DG will be terminated for “breach of trust” – a notion more appropriate in the context of employer and employee relationship.

We should not fool ourselves into believing that the identity of the person appointed at the head of the FCC will not affect the efficiency and independence of the Commission. On the contrary, by virtue of being a political appointee, the Director General will be the face of the Commission.

* The Constitution provides for the DPP to institute/take over and continue/discontinue criminal proceedings. What’s wrong with the provision that would empower the FCC to start and conduct an investigation and even to prosecute?

I note, first of all, that there are no amendments being made to section 72 of the Constitution. Therefore, the legislator intends section 72 to trump any legislation which may be read in contravention of its provisions. So, what is wrong is that the FCC in its present form attempts to curtail significantly and indeed reduce the powers of the DPP without the constitutional powers of the incumbent being touched. This in itself suggests that the FCC may be cast aside as being unconstitutional. It is an attempt to circumvent section 72 by a simple legislation.

And let me add that whilst it is right to acknowledge that Section 72 contains other measures for controlling prosecutions (the power of the DPP to take over and discontinue proceedings), these measures would NOT be sufficient to prevent the harm that would be caused by inappropriate proceedings even though they may be terminated post institution, before the court at least in theory.

* We understand that when the Constitution was being drafted, it was thought necessary to provide the Commissioner of Police, DPP, etc., an additional guarantee of constitutional protection to allow them to counter abuses or excesses of the Executive, if any. But shouldn’t they not be made answerable to at least some form of oversight — parliamentary or otherwise — rather than through onerous and time-consuming judicial reviews?

The only so-called accountability revolves around the termination of the Commissioners by the Parliamentary Committee or submissions of annual reports of accounts. No independent mechanism of accountability is provided for in the Bill. The Parliamentary Committee has been useless and that’s perhaps the very reason why it has been maintained.

* Besides institutional conflicts that may arise between the FCC and the ODPP in light of what may be perceived as a usurpation by the FCC of the DPP’s constitutional powers, do you see our highest court eventually striking it down as an unconstitutional piece of law – if it goes through?

The Supreme Court is the guardian of our constitution. Under Section 72 of the Constitution, the DPP has indeed been expressly given power to enter prosecution, by himself or other persons acting under his general or specific instructions. Section 72 insulates the DPP as a prosecutorial authority from any political organs of the State. Let me remind you what Justice Lallah wrote in Edath-Tally v M J K Glover [1994] MR 200:

“A distinguishing feature of our Constitution is the splitting of executive functions between what one might call the political Executive which remains answerable to Parliament and an independent non-political Executive, in specific matters, consisting of, among others, the Director of Public Prosecutions, the Service Commissions and the Electoral Supervisory Commission, which are not answerable to Parliament. The purpose of this device is, institutionally, to insulate certain areas in the conduct of public affairs from political responsibility and control, thus ensuring their autonomy and independence.”

And, at time of the creation of the Office in 1964, constitutional expert De smith wrote on the need “to safeguard the stream of criminal justice from being polluted by noxious political contamination to segregate the process of prosecution entirely from general political considerations”. These warnings could not have been in vain.

However clever the legislator is trying to be, one cannot shift the control of prosecutorial powers albeit for one category of crime to a political appointee. If we pursue that logic and carry on transferring the responsibility for deciding criminal offences to other investigative bodies, we might as well close down the Office of the DPP. 

* On the other hand, what do you make of the legal conflict opposing the Commissioner of Police and the DPP – both holders of constitutional posts?

It is unfortunate; there must be a good working relationship, cooperation, and mutual respect between the two institutions. It as simple as that. The rule of law should prevail over everything else.

* The DPP might have had good reasons in law to discontinue Vivek Pursun’s private prosecution against Maneesh Gobin and Rajanah Dhaliah – just like you did in the case instituted by Mrs Simla Kistnen against Yogida Sawmynaden. An offence might have been committed, but the complainant/s, unlike the police, would not have the resources to gather any incriminating evidence to mount a credible case. Could it be argued therefore that the case/s should nevertheless have been allowed to go through?

As a former DPP, my answer would be in the negative, regardless of the parties, the considerations of the DPP remains the same for all cases: the evidence test and the public interest test.

* In the run-up to the next elections, the recent judgement of the Privy Council in the electoral petition of Suren Dayal challenging the election of Pravind Jugnauth, Leela Devi Dookun-Luchoomun and Yogida Sawmynaden does not unfortunately provide much comfort to proponents of free and fair elections in view of the freebies that are likely to be distributed ahead of the polls. What are your comments on that judgement?

Whoever is going to challenge the elections after the upcoming National Assembly elections will have to make sure that his petition clearly substantiates his grounds and emphasises the Mauritian context which is invariably unknown to the Law Lords.

Mauritius Times ePaper Friday 8 December 2023