“What is nonsensical is to have these assets kept and monitored by ICAC”

Declaration of Assets by Magistrates and Judges

Qs & As

* ‘Compelling judges to declare their assets to ICAC would place them under the executive authorityof ICAC’

By LEX

Declaration of assets by public officials is a powerful tool to deter illicit enrichment and combating corrupt practices says the World Bank and our own Act of Parliament. However, some key issues arise: (i) should those declarations be made publicly available? (ii) is ICAC the right institution, alternatively which structure should safekeep those declarations? and (iii) should the judiciary be exempt from such a provision? There are no standard solutions as contexts differ and Lex shares his views below.

* According to the World Bank, more than 150 countries have introduced asset disclosure requirements for their public officials. This would suggest that assets declarations are considered to be effective in preventing corruption, detecting illicit enrichment and conflicts of interests. Is that indeed the case?

Asset declarations of public officials are a powerful tool to prevent corruption, detect illicit enrichment and conflicts of interests.

Two Ukrainian journalists Dmytro Kotlyar and Laura Pop Ukrainska, writing in 2016, expressed the view as follows: “Public disclosure of the private assets of public officials and family members does not clash with the rights to privacy and data protection. Both rights are not absolute and can be restricted provided there is a basis in law and a legitimate public interest justifies the restriction. Prevention of corruption and exposing unexplained wealth of officials are serious and legitimate public interests.”

Surely this is a powerful argument to justify the concept of declaration of assets.

In a case decided by the European Court of Justice in 2005, the Court rejected the complaint of a local council member in Poland who refused to submit his asset declaration claiming that the obligation to disclose details concerning his financial situation and property portfolio imposed by legislation was in breach of Article 8 of the European Convention of Human Rights on privacy.

* Assets declarations, which can inform us about the financial stakes of government officials that could impact their decisions are usually not available for public consultation. One would have thought that the need for transparency and accountability should have trumped confidentiality issues. What’s your take on that?

The Organisation for Economic Co-operation and Development (OECD) gives the following guidelines: “While there is a global trend towards greater disclosure, striking the right balance between public disclosure and protection of privacy remains a subject of debate. There are strong reasons for disclosing, at least partially, data of political officials, such as MPs. Politicians should be prepared to provide explanations regarding the disclosed information, if there are any serious concerns raised in the media or by civil society.”

Concerning the lower-level public officials, the right degree of public disclosure should be determined on the basis of a careful weighing of various considerations, such as domestic traditions, perceptions of corruption in a given country, possible safety concerns, and other dangers.

In a small country like Mauritius where bigotry reigns supreme, one should be careful before releasing to the public a declaration of assets.

* The World Bank for its part considers that ‘transparency conflicts with the privacy and data protection rights of the declarants and related persons… In some contexts, this can affect their security and become a barrier to the entry of some professionals into public service…’. It goes on to suggest that ‘policy makers therefore have to find a balanced solution that takes account of these competing interests’. That sounds reasonable, isn’t it?

According to the World bank, “public access to declarations generates some controversy and resistance. There is no straightforward answer to this issue. How to strike a balance between public access to information and the right to privacy of filers—and how to address concerns in some jurisdictions about security risks — is a challenge faced by most systems.”

There should be a rational balance between the need to make public declarations of assets where peeping Toms are waiting to prey on their potential victims and the need to ensure the security of the person whose assets are thrown out to the public. The question may arise whether our public is mature enough to understand the need for public disclosure. In addition, there is no guarantee that politicians will not exploit the declarations of assets held by their opponents. These are some of the factors that need to be considered in the local context.

* It’s the Independent Commission Against Corruption (ICAC) that has been vested with the power to monitor the assets and liabilities of any declarant (members of the National Assembly/Rodrigues Regional Assembly, Mayors and Councillors of municipal councils, Chairpersons and Chief Executives of State-owned enterprises and statutory bodies, advisers and officers employed on a contractual basis in ministries) for the purpose of detecting and investigating corruption and money laundering offences or illicit enrichment. ICAC is the competent institution to do that in light of its mandate as prescribed by the law?

Most independent observers will take the view that ICAC is not the proper institution to be the custodian of the asset declarations of public officials and members of the national Assembly. It would have been much more logical to establish a special body for public officials under the aegis of the Public Service Commission. And a special committee in Parliament for members of the National Assembly.

As it is, ICAC will be judge and party in the sense that it will the custodian of the declarations and at the same time it will have the power to investigate. Under the Prevention of Corruption Act, a person may refuse to answer a question put to him or refuse to furnish information, documents, records or statements where the answer to the question or the production of the document or class of documents might tend to incriminate him. So, by declaring his assets, the person may unwittingly be providing any information or document which could incriminate him.

* The ICAC has, in its 2020-21 annual report, expressed the view that “judicial officers… should be subject to the obligations under the Declaration of Assets Act in order not to defeat the purpose of the Act”. In fact, the Declaration of Assets (Amendment) Act 2019, proclaimed in August 2019, removed the obligation on judicial officers to make a declaration under Act. Does that removal make any sense?

Such a blanket statement without a deep and serious study is simply nonsense and very dangerous for the independence of the judiciary. Do not forget that there is an unwritten constitutional provision or conventions that guarantees the separation of powers between the Executive, the Legislature and the Judiciary. As some lawyers have stated, compelling judges to declare their assets to ICAC would place them under the executive authorityof ICAC.

* Some lawyers have indeed taken issue with the ICAC’s view as tantamount to placing the Judiciary under the thumb of the Executive, which would thereby undermine its independence. According to the lawyers’ reasoning, it’s the independence of the Judiciary that should trump the need for transparency and accountability, right?

The constitution guarantees an independent judiciary. It is not so much compelling judges to declare their assets that is objectionable. What is nonsensical is to have these assets kept and monitored by ICAC. And the lawyers are absolutely right.

* One suggestion from a member of the Bar is that the Judicial and Legal Services Commission (JLSC), which promotes and nominates judicial officers, is better placed to play an effective oversight role as regards the assets of Magistrates and Judges rather than the ICAC. But that does not seem to be the mandate of the JLSC?

No. the mandate of the JLSC is to appoint magistrates and officers of the State Law Office and to make recommendation for the appointment of judges. The JLSC also has the power to take or advise disciplinary action against members of the judiciary.

Though it is not the mandate of the JLSC to be the custodian of the declaration of assets of the judges, a special department of the Supreme Court could be the custodian of the declaration of assets of judges if ever there is such an obligation on them to make such a declaration.

* What if the government decides to bring back the obligation for judicial officers to declare their assets, and the latter collectively decide not to comply with the law? What could be the consequences of such an action?

If the law is such that judges and magistrates should declare their assets, they should do so to a body within the judiciary. If it is otherwise, judges would know what to do.

But if it is a comprehensive and rational law that does not imperil the independence and integrity of the judiciary judges would comply with the law.

* Would such an action put in question the principle of parliamentary sovereignty in the sense that it’s the legislative body that has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies?

No. Parliament is supreme to pass any law so long as the law is not unconstitutional. Parliament may argue that a law requiring judges to declare their assets is in the public interest, and thata transparent judiciary is justifiable in a democratic society.

There are examples in the past where judges have filed cases before the Supreme Court; this was not regarded as an attack against parliamentary sovereignty if that sovereignty is the law of the land. I would rather talk of constitutional sovereignty.

* In a recent publication of the Stolen Asset Recovery Initiative of the World Bank and UNODC – ‘Getting the Full Picture on Public Officials: A How-To Guide for Effective Financial Disclosure’ – new data is being presented suggesting that in more than half of the 161 countries covered by the study, judges and prosecutors are required to disclose their income, assets and other relevant interests and activities. In the case of Supreme Court Justices this applies already in almost 60 per cent of countries. The issue seems to be gaining traction in many jurisdictions. How do you react to that?

It all depends to whom the declaration is done. Why did the 2018 government amend the Declaration of Assets Act to remove judicial officers from the list of persons that were required to submit a declaration?

Making the declaration is not sinister in itself; it would be the modalities accompanying the obligation to declare.

Mauritius Times ePaper Friday 15 April 2022