“The most sensible thing that Ivan Collendavelloo could do in the circumstances is to resign and provoke a by-election”
ICAC is the sole and lead agency in our fight against corruption and money-laundering. Yet, despite its significant resources, experienced investigators and vast powers, it is perceived to be serving and protecting the interests of the government and its political big-wigs. Lex is invited to comment on the lack of progress in several such affairs as the St. Louis gate, its possible exploitation as a Damoclean sword for political ends and, more generally, on this sorry state of affairs prejudicial to the country’s image.
* The Independent Commission Against Corruption (ICAC) has yet to bring its investigation into the case of alleged corruption in the St Louis Power Station Redevelopment Project to a closure. Bertrand Lagesse, head of AMB Lagesse Business and Engineering Consultancy, and Philippe Hao Thyn Chuan Ha Shun of PAD Co and Prof Kasenally had been called for interrogations. Those in relation to Hon Paul Berenger and Ivan Collendavelloo, whose names have been allegedly mentioned in the partial report of the African Development Bank’s Integrity Oversight Committee, have been left in abeyance. Both political leaders have therefore been left hanging in the air apparently due to the “complexity” of the matter. What’s your take on that?
Whenever there is a suspicion of corruption on anybody, the ICAC should immediately set the machinery in motion and start an investigation with a view to finding out whether there is a case against the person who is suspected of corruption. Unfortunately, public perception is that ICAC is always slow to act whenever the matter involves a politician of the majority or somebody close to the government.
This a most unhealthy situation for any institution that is supposed to act independently of political power. If there is case against any politician or political leader, let the investigation proceed and the result communicated to the DPP. But Mauritius being what it is with the present regime, the St Louis inquiry is likely going to serve as a political weapon to get at Hon. Paul Berenger. My take on that is that there is nothing substantial against Paul Berenger and that all the noise and allegations made are simply devoid of any merit or substance.
* Hon Collendavelloo has been left by the wayside for a long time now, and he is therefore unable to resume his seat in Cabinet. As for Hon Berenger, the sword of Damocles is still hanging over his head. How do you react to that?
One could reasonably suspect that had there been an iota of evidence against Paul Berenger, ICAC would have summoned him right away! It does not seem that to be the case. If there is nothing against Ivan Collendavelloo and Paul Berenger, let ICAC say so instead of sleeping on the investigation for whatever reasons.
* The Prevention of Corruption Act 2002 does not provide for an oversight mechanism to monitor the ICAC at its operational level, except for a Parliamentary Committee, 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’. What this means is that there is therefore no mechanism to police the ICAC. That cannot be right, isn’t it?
The ICAC is not accountable to anybody or to any institution except to public opinion. But does it care?
There is a Parliamentary Committee that acts more as a political body rather than an oversight body to ensure that the ICAC is functioning as the law provides. The Parliamentary Committee has the power to monitor and review the manner in which ICAC fulfills its functions with regard to its finances, resources and staffing. It may also give general directives to the Commission with regard to the manner in which it is to perform its functions and exercise its powers
It shall also receive reports from the Commission at such intervals as the Parliamentary Committee may require; make 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. The law also provides under Section 61 that ‘where the Parliamentary Committee issues a guideline under subsection 61(1)(d) – the Chairperson of the Parliamentary Committee shall lay the guideline on the table of the Assembly within 14 days from the date on which such guideline was issued.’ This begs the question: Has any guideline ever been tabled in the assembly?
These are wide powers of the Parliamentary Committee. Has that committee ever exercised those powers? If so, with what results?
* Could both Hon Berenger and Collendavelloo have turned to the judiciary for some form of redress if they thought they were being unfairly treated by ICAC?
That may well be pointless because all that a court of law will do is to tell the two gentlemen that it cannot interfere in the internal workings of ICAC.
If, however either of them is summoned by ICAC, they may petition the court on the ground that there is no credible evidence for the ICAC to summon them. If that were to happen, we will see what stand our independent judiciary will take.
* We had argued earlier that for much less Ivan Collendavelloo resigned from the National Assembly in 1989 in the wake of the controversy surrounding his endorsement of the then Sun Resorts’ boss Sol Kerzner’s passport application. The honourable thing for him to do would be to resign his parliamentary seat and, if he so wishes, redeem his honour in an ensuing by-election besides fighting it out in court. This is the only way that Ivan Collendavelloo could salvage his honour, isn’t it?
The most sensible thing that Ivan Collendavelloo could do in the circumstances is to resign and provoke a by-election. Let him go before the electorate and spill the beans. It will thus be for the electorate be judge of whether he is guilty or not given that ICAC is unable or unwilling to act as it should.
* Besides so many questions that remain unanswered as regards the St Louis contract, there is a long list of pending inquiries at the ICAC. This does not bode well for the country’s reputation at global level, especially in the wake of the European Commission’s decision to place Mauritius on the list of high-risk jurisdictions. It also highlights the absence of a credible and respected investigative agency capable of handling white collar crime independently of political proximity. We do not seem to have learnt any lesson?
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. That sadly does not seem to be the case.
* If ICAC is struggling to live up to expectations, is the fault in the structure, the nomination process, the effective oversight of the institution or what?
The director and the assessors of the Commission are appointed by the Prime Minister. This unfortunately may come in the way of the independence of the institution. On the other hand, it requires moral and mental fibre to be ferociously independent.
* What essential amendments would be necessary and/or desirable to change the perception of ICAC and its perceived lack of credibility in the public mind?
The biggest change should be in the manner of appointment of the director and the assessors. Let the process of appointment be done by calling candidates to apply and let the selection be done either by a Select Committee of Parliament or by the Judicial and Legal Service Commission.
* In India these days, the ED (the ICAC equivalent) is being attacked by the Indian National Congress for its inquiries in the ‘National Herald’ case which have seen two Gandhis called in for questioning over aspects of money laundering. Is it being implied that somehow political leaders are above laws that apply in full severity to the common man?
Nobody is above the law. Lord Denning, an eminent British Judge, used the words of Thomas Fuller in a judgment against the British Attorney General: “To every subject of this land, however powerful, ‘Be ye never so high, the law is above ye.’”
Unfortunately, in Mauritius these days, those in power or close to power seem to think that they are above the law. This scourge of impunity can only be fought by ferociously independent institutions – not those that are these days perceived to be doing the bidding of the powerful of the day.
Mauritius Times ePaper Friday 5 August 2022
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