In an earlier comment in these columns on the proposals canvassed at different times aimed at setting up a Financial Crimes Commission (FCC), we had argued that there is need for a clean-up either in the form of a new single lead Agency for investigating all financial scams, frauds, money-laundering and corruption activities or an apex organisation that might sit over and coordinate the existing disjointed structures with different reporting mechanisms. The present setup has given rise at times to grumblings in the past arising from competing agendas, limited communication and information-sharing, mistrust as well as capacity differences between the different agencies at work in the fight against financial crime. Legal and institutional overlap and conflicts were perhaps inevitable with six separate agencies involved in tracking financial crime.
The purpose of a FCC, as announced by Sir Anerood Jugnauth on 7 June 2016, in reply to a PQ pertaining to the proposed setting up of such an institution, and even around 2013 with rumours floating about a proposed merger of the Bank of Mauritius and the Financial Services Commission, was meant to ensure greater coordination among law enforcement agencies and to reinforce public-private partnership in combating financial crime. The objective then favoured the setting up of an umbrella institution that would bring greater coordination among the law enforcement agencies, reporting to different parent ministries.
The Financial Crimes Commission Bill – (No. XX of 2023), as tabled in the National Assembly, last week, has already given rise to protests from political and legal quarters which have questioned the constitutionality of the proposals. What is being proposed appears to be another version of ICAC, but much more powerful and with a wider-ranging authority and mandate and devoid of any kind of accountability as regards the status of investigations. Given the experience with ICAC since its inception and its singularly inept performance in taking to task those in the spheres of power, it is not surprising that the proposed FCC is already being viewed with so much suspicion and resentment.
A perusal of the FCC Bill indicates that its object is to establish an apex agency to detect, investigate and prosecute financial crimes. Some of the provisions of the Act, listed below, may not appear objectionable per se, but the devil is as always in the details and in their application:
– The Commission (including the Director-General) shall, in the discharge of its functions and exercise of its powers, not be under the direction or control of any person or authority;
– The Commissioners shall be appointed by the President, acting in accordance with the advice of the Prime Minister, tendered after the Prime Minister has consulted the Leader of the Opposition; the Director-General must have ‘served in an anti-corruption body at a senior level for a period of at least 5 years;
– A legal person shall ensure that it has adequate procedures in place, which are reasonably necessary, to prevent it or any person acting on its behalf from committing an offence under the Act, failing which it shall commit an offence and shall, on conviction, be liable for a fine not exceeding 20 million rupees;
– The Commission may, in carrying out an investigation, conduct such hearings as it considers appropriate – in public or in private – at the discretion of the Director-General;
– Where, in the course of an investigation under the Act or for any other purpose under the Act or the Declaration of Assets Act, the Director-General is satisfied that a property is the subject matter of, or relates to, an offence, the Director-General may seize that property;
– Where the Director-General is satisfied, with regard to an investigation or prosecution for an offence under this FCC or the Declaration of Assets Act, the Commission may, in writing, direct an officer to arrest that person;
– Members of the Operations Review Committee – political appointees -, excluding ex officio members, shall be appointed – by the President, acting in accordance with the advice of the Prime Minister;
– A Parliamentary Committee, which shall be responsible to monitor and review the general manner in which the Commission discharges its functions , shall consist of 9 members, 5 of whom shall be designated by the Prime Minister and 4 of whom shall be designated by the Leader of the Opposition.
– The Commission may institute such criminal proceedings as it may consider appropriate for any offence under the FCC or the Declaration of Assets Act – without prejudice to the powers of the Director of Public Prosecutions to take over, continue or discontinue such criminal proceedings;
– Any person convicted of an offence under the FCC – monetary benefits or from a property – shall in addition to the fine and imprisonment imposed for that offence, pay a penalty in an amount not exceeding 100 times the amount of the monetary benefits or value of the property;
– No action shall lie against the Commission, the Director-General, a Commissioner or an officer in respect of any act done or omission made by it or him in good faith in the discharge of its or his functions.
Comforted by its numerical strength in the Assembly, the passing of the FCC legislation by a simple majority, will have the effect of installing a supervening authority (the FCC) which may put in question the absolute discretion the DPP currently enjoys whether to prosecute a case or otherwise in the light of available evidence and/or substantive law. So far, the independent set-up of the DPP’s Office has prevented it from “being polluted by the inflow of noxious political contamination”, to quote from the Constitutional Commissioner, Prof SA De Smith in 1964.
Other pointedly relevant questions relate to the appointment of the members or head of the proposed FCC and with what degree of independence and accountability they would operate – the more so given that the government has not seized this opportunity to re-build trust by proposing to give the head of the FCC constitutional protection in much the same way as the DPP for him/her to be able to function independently, without fear and favour; The FCC head will instead be appointed by the Prime Minister and could therefore be subjected to political influence.
Beyond the possibility that the FCC Act might constitute an ad hominem attack against an Opposition leader, what is being proposed looks to many lawyers and commentators like a monster that could eventually be instrumentalised to track and indeed neutralise political adversaries across the board.
Mauritius Times ePaper Friday 8 December 2023
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