Institutional Independence vs. Accountability: The FCC, DPP, and the Constitutional Balance

Qs & As

By Lex

On 31 January 2025, Cabinet approved the introduction of the Financial Crimes Commission (Miscellaneous Provisions) Bill, which aims to restore the prosecutorial powers of the Director of Public Prosecutions (DPP) under the Financial Crimes Commission (FCC) Act of 2023. This move mandates that no prosecution under the FCC or Declaration of Assets Acts can proceed without the initiation or consent of the DPP. While intended to ensure proper oversight, this decision effectively reduces the FCC to a passive investigative body, reminiscent of the now-defunct Economic Crime Office (ECO) and the perceived passive role of the Independent Commission Against Corruption (ICAC) under former leadership. Does this shift strike the right balance between institutional powers, or does it compromise the separation of powers enshrined in the Constitution?

* On 31 January 2025, Cabinet approved the introduction of the Financial Crimes Commission (Miscellaneous Provisions) Bill, aimed at restoring the prosecutorial powers of the DPP under the FCC Act 2023. As a result, no prosecution under the Act or the Declaration of Assets Act can proceed without the DPP’s initiation or consent. Effectively, this move reduces the FCC to a passive investigative body – much like the now-defunct ECO or the ICAC before it. Does this decision establish a proper balance of power among key institutions, or does it disrupt the constitutional separation of powers?

The FCC will not become a passive body. Under the ECO, several prosecutions were initiated by the DPP following investigations. It is worth recalling that the MSM-MMM government dismantled the ECO after it launched an investigation into a senior minister.

In contrast, ICAC under Navin Beekarry was widely perceived as passive, with his allegiance seemingly aligned with the former Prime Minister. This perception was reinforced by ICAC’s inaction in high-profile cases such as Angus Road, St Louis Gate, and the Kistnen Papers. We must also remember how Beekarry told the Privy Council, in the Medpoint case appeal, that there was no case to answer.

* We previously highlighted that the FCC’s decisions were beyond challenge, neither subject to judicial review nor open to legal action for gross malfeasance. Moreover, it had the absolute discretion to discontinue investigations into financial fraud or corruption, effectively granting an executive body unchecked authority. Was there truly no legal avenue for the judiciary to intervene and impose checks on this power?

The FCC’s decisions could and can be challenged through judicial review. However, under the previous regime, no one dared to bell the cat. Since the FCC’s actions constitute administrative decisions, they are legally subject to judicial review.

The key hurdle, however, lies in establishing locus standi. Demonstrating a direct interest in the matter is not always straightforward, making it difficult for potential challengers to bring a case forward.

* The FCC has nevertheless an important role to play in the fight against financial crimes. Insofar as its future role is concerned, what will remain of the FCC’s original mandate with the revised Bill?

It is not a question of any original mandate. The FCC Act has been amended to restore the DPP’s prosecutorial powers, but beyond this, all offences remain unchanged. The FCC retains full authority to investigate past, present, and future offences.

* The debate over accountability vs. independence is particularly relevant for constitutional office holders such as the DPP and the Commissioner of Police, who operate with significant authority yet are shielded – at least on paper — from direct political influence. What mechanisms could be introduced to ensure their accountability without undermining their independence or making them subservient to the executive?

Under the Constitution, the Commissioner of Police (CP) is not subject to the orders of political figures, except for general directives that the Prime Minister may issue. It is the CP’s duty to act independently. Similarly, the Director of Public Prosecutions (DPP) enjoys full constitutional independence, and historically, all holders of the office have exercised their duties with scrupulous impartiality.

Public opinion serves as a vital form of accountability, but in practice, this mechanism falters due to a largely passive and disengaged public. However, both the CP’s and the DPP’s decisions can be challenged through judicial review, providing a crucial legal avenue for accountability.

* Would judicial oversight, parliamentary scrutiny, or an independent review body help strike the right balance? Could periodic reporting requirements or a system of checks and balances be introduced without compromising their constitutional mandate?

There is no need for such a body. The Commissioner of Police (CP) can already be held accountable through parliamentary questions regarding his decisions. However, when it comes to the Director of Public Prosecutions (DPP), it is unlikely that any parliamentary question on his actions would be allowed, given his complete constitutional protection.

Creating an oversight body to scrutinize the decisions of the CP and the DPP would smack of political interference and could ultimately undermine their independence.

* Some countries have independent prosecutorial oversight bodies or parliamentary committees that oversee the work of the DPP. Would such a system be viable in Mauritius?

Mauritius is a small country, and we must be cautious about creating oversight bodies for independent institutions, as this could risk undue interference. However, the FCC falls into a different category—it is an investigative body, not a constitutionally independent institution.Read More… Become a Subscriber

Mauritius Times ePaper Friday 14 February 2025