Independence of Institutions


By R Laxman

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. 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 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 a proper referendum were to be held today on the independence of our institutions, the result might astound us. We have in this country many institutions that should be independent. The perception is that many are not, although they may be in actual fact. Maintaining institutional autonomy vis-à-vis the government of the day and political parties is very important as it reflects the kind of democracy that we practise. The process of recruiting people to serve in institutions is as important for an institution’s independence as those who are selected to do so.

Taking a look at the appointment of the persons who are chairing a number of supposedly independent institutions in the country can be revealing. The director of the ‘Independent Commission Against Corruption’ is appointed by the Prime Minister. One will recall that the current director of the ICAC was fished from the US or Canada by the former Prime Minister Sir Anerood Jugnauth to head the Commission. Why that particular choice? And we have seen how that Commission changed gears in the MedPoint case when the appeal was heard before the Privy Council. What is equally surprising is the sudden interest of the Commission to go after the former Minister of Good Governance on allegations of conflict of interest in the recruitment of contractual officers in the Ministry of Financial Services two years back. Will the Commission pursue the investigation on the allegations levelled by the former minister’s adviser Akilesh Deerpalsing on the recruitment of people or relatives close to the regime? Or will this investigation go the same way as the one that was being conducted into the ex-Board of Investment’s handling of another of Alvaro Sobrinho’s application for some RES project? That investigation has apparently fizzled out lest it causes further embarrassment…

The Integrity Reporting Board established by the Good Governance and Integrity Reporting Act consists of a chairperson and two other persons. The chairperson is appointed by the Prime Minister and the two other members by the minister responsible for good governance. The head of the Financial Intelligence Unit, established by the Financial Intelligence and Anti-Money Laundering Act, is appointed by the president of the Republic on the recommendation of the Prime Minister made in consultation with the leader of the opposition. The law requires the head of the Financial Intelligence Unit to discharge his functions and exercise his powers under the law without fear or favour. He should not be subject to the direction or control of any other person or authority.

All the heads of the institutions referred to above happen to be political appointees. While they must act independently once they assume their function, the perception in the public is that they toe or are compelled to toe the line of the government of the day. ICAC’s credibility has taken a hit following the 180-degree turn it made in the MedPoint case before the Privy Council. As regards other so-called independent bodies, we have learnt from testimony given before the Commission of Inquiry chaired by Judge Caunhye that one financial institution was a party to a business lunch at Le Réduit when Signor Alvaro Sobrinho was applying for a banking licence. We have seen how the power to issue such a licence was transferred from the Central Bank to the FSC. Was it because the latter institution was considered to be more amenable to directives from higher-up?

Following a general election, the holders of the posts in the different institutions are made to leave or are simply sacked in favour of another crop of political protégés. Can there be a solution to this unprecedented mess? Legislation on the manner of the appointment of the different heads of these institutions would be one solution. Instead of leaving the choice of the heads and members of those institutions to politicians, the positions should be advertised and the selection made by a strong independent body like the Judicial and Legal Service Commission that has for responsibility to appoint magistrates and lawyers of the State Law Office. The Judicial and Legal Service Commission also has the mandate to recommend the appointment of judges to the President of the Republic. It is also for that Commission to appoint the Solicitor General and the Director of Public Prosecutions. The appointment may be a specific non-renewable term or for one more renewal subject to the incumbent submitting a fresh application for appointment.

Successive governments come in with loud and large promises to clear the Augean stables, among others respect for the autonomy and integrity of our institutions. And yet, before we have time to say boo! the downward slide starts all over again, with hardly veiled and at times even overt interference in institutions without any qualm, and stand up in defence of the most irregular practices that would be pilloried not on legal but also on ethical grounds. The bottom line is in fact the latter: without a culture of the highest ethic we are not likely to restore the trust that our institutions deserve. The culprits must stand up and not only take note but action too. Will this happen?

* Published in print edition on 1 February 2019

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