Qs & As
In defence of the Public Interest
“The sooner we have a law on fiscal responsibility the less amateurish action and opacity we will witness and have to endure”
* ‘If the Police and ICAC remain passive for reasons best known to themselves, again how can a case reach the courts?’
In this interview LEX discusses the mechanisms available to investigate matters of public interest, and whether and how anyone occupying public office, from the prime minister and ministers to other persons who handle the affairs of the country can be prosecuted for any past misdeeds. He makes the case for a Fiscal Responsibility Act instead of a freedom of information legislation which he feels will be too weak.
* How would you go about prosecuting ministers or the head of a public institution, be it the police or the ICAC, if you felt they were acting in breach of the law?
The law of the country applies to one and all. No public officer from top to bottom, no prime minister, no minister, no member of parliament is immune from criminal proceedings if there is evidence that he or she has committed an offence. Remember how the former Prime Minister was dragged like a vulgar criminal following the 2014 elections on different charges for which he was prosecuted but thereafter acquitted.
* Since the Courts seem to be the only avenue for seeking redress with regard to matters that involve genuine public interest, are there any guidelines to help members of the public bring prosecutions against prominent public figures?
Any member of the public has all the legitimate right to file a complaint with the police against any prominent public figure. The real question is whether the police force will dare to start an investigation in a complaint filed against a minister or a high public officer.
We have seen many such complaints lying dormant for months if not years with investigative bodies. Why? Is it because these investigative bodies, whether it’s the police or ICAC, decided to look the other way, as it is widely perceived, when it comes to ministers and high public officers serving the present regime? If no proper investigation is carried out, it’s unlikely that a solid case will reach the courts.
* There are many instances when politicians in power have taken decisions, not necessarily for personal gains but clearly not in the public interest, which go unpunished and ultimately cost the public exchequer millions if not billions in terms of damages. Why is it that such cases are hardly ever brought to trial?
Indeed, there are several cases of serious abuses and wrongdoing committed by people in power. The institutions that should investigate, the ICAC and the police, can start an investigation either of their volition or on a complaint. If they remain passive for reasons best known to themselves, again how can a case reach the courts?
* Does it therefore mean that there isn’t any legal provision or formal mechanism that would hold former ministers/prime ministers to account for any past misdeeds on their part?
The mechanisms are there. Only those who control these mechanisms stay put when it comes to ministers.
* Is the issue of public interest more complex than it seems to be the case given that opinions may differ about what constitutes public interest or not and courts will have difficulty to distinguish between the two?
Public interest is a vague and wide expression. What amounts to public interest depends on a series of facts and circumstances. The courts have nothing to do with the interpretation of public interest except where they have to rule on whether derogations from fundamental rights are in the public interest. The courts deal with cases that are filed before them and they will determine the case on the admissible evidence presented before them.
* There were talks at one time about the need to introduce laws on fiscal responsibility and economic crime to counter acts of wrongdoing in public office. What’s your take on that?
We should have one especially after witnessing the juggling of figures and the movement of funds between the Consolidated Fund (that is constitutionally provided) and the opaque Special Funds. Added to this is the depletion of the reserves of the Central Bank. All these call for serious investigations.
* In fact, the Finance minister has been accused of using ‘tricks’ and ‘stratagems’ for the financing of some popular measures outlined in his last Budget. Wouldn’t the adoption of a law on fiscal responsibility have been an important step towards establishing prudent fiscal policy and helped ensure the sustainability of public finances?
Of course. The Minister of Finance should be answerable to a select committee of parliament or there should be a law that prohibits the kind of action he is alleged to have taken with our finances which after all are the property of the public and the country. The sooner we have a law on fiscal responsibility the less amateurish action and opacity we will witness and have to endure.
* It would seem that civil society will have to go on pressing for the introduction of alternative mechanisms for ensuring executive accountability through a freedom of information law and more powerful parliamentary committees since politicians would not want to shoot themselves in the foot, right?
A freedom of information act will achieve nothing. We need a law on fiscal responsibility which creates criminal offences and establishes the civil responsibility of any minister who diverts public funds towards a war chest that will serve the electoral agenda of a political party.
Mauritius Times ePaper Friday 17 June 2022
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