Since its inception, the Independent Commission against Corruption (ICAC) has been the subject of intermittent waves of criticism. It is an institution which has apparently been created without an untainted political will and the correct orientation.

The very nature of an institution called upon to investigate people’s wealth and property must be in line with the laws of this country, in particular, the citizens’ fundamental rights to privacy, personal liberty and property, the right to an untarnished reputation and the protection against any discrimination. Recently, public indignation against the ICAC has gathered momentum. Even the prime minister has publicly expressed his exasperation.

A retrospective look at the few attempts to combat corruption and tackle the problem of illegal enrichment and the sleaze of public officials would prove fruitful in analysing any of the shortcomings of the ICAC. Under the previous government, a draft bill aiming at combating corruption was published to financial institutions. According to the draft bill, an independent board was to supervise the Director of the Office.

Unfortunately, the necessary checks and balances contained in the draft bill were deliberately interfered with. The provisions creating the supervisory board were removed and its powers attributed solely to the discretion of the Director of the Office. The absence of effective control left the director with the discretionary exercise of wide and threatening powers.

Worse still, the appointment of the Director was to be made by the President after consultation with the prime minister and the leader of the opposition, i.e all political figures. The bill was enacted as The Economic Crime and Anti-Money Laundering Act 2000 (ECALA), whereby the Economic Crime Office (ECO) came into being.

The ECO failed to meet expectations and was criticised, unjustly or not, as a political instrument of oppression. When the present Government came to power, certain political figures felt threatened – wrongly or rightly. Consequently, the Government abolished the ECO and set up the ICAC under the Prevention Of Corruption Act 2002 (‘POCA’). Was the ICAC truly given independence under the POCA?

Bias and doubts on independence

Currently, the ICAC Commissioner and the two deputy commissioners who, together, constitute the Commission, are appointed under section 18 of the POCA by the Appointments Committee, consisting of the President, the prime minister and the opposition leader. It should be noted however that the President does not have a casting vote in the matter.

The fact that the appointment is done by leading politicians prima facie creates an element of bias and casts serious doubts on the independence of the ICAC. So far, the ICAC has practically prioritized and mediatised investigations outside the realm of politics. As contained in the proposals for the reform of the Judiciary of Lord Mackay’s report, for the Judiciary to be independent and to be seen as such, even the Chief Justice should not be appointed by politicians. Yet, the legislator persists in this practice by allowing politicians to choose the Commissioner of the ICAC.

The legislator defies common sense by going even further. The body meant to supervise the Commissioner, that is, the Parliamentary Committee prescribed by section 59 of the POCA consists of politicians, five MPs designated by the PM and five MPs designated by the opposition leader. One wonders if the ICAC will ever start investigating any member of the leading political parties who may have indulged in corruption! In any event, if the political will were to create an effectively independent inquiring body, a Parliamentary Committee should not be its controlling body.

The POCA provides a complex and watertight procedure to remove the Commissioner from office. This can be found in section 23 of the Act, which clearly meant to give security of tenure to the Commissioner and guarantee his independence from the politicians who appointed him. Ironically enough, this procedure can be easily bypassed by a bill enacted by a simple majority of the National Assembly amending section 23. Clearly, a Commissioner of any public institution who has acquiesced to a standard of living, which considerably exceeds that of the PM himself, will probably make sure he keeps the post by bowing to the Government.

Was such a colourable device in the legislation establishing the ICAC deliberately designed, or was it the result of poor legislative drafting? The Director under the ECALA, in contrast, was given some security of tenure in the Constitution. In other words, she could only be removed by a qualified majority of two-thirds of the National Assembly.

The Director of the Corruption Investigation Division of the ICAC is appointed under section 29(a) of the POCA by the Commission, after consultation with the Prime Minister. According to section 29(b), the Director is responsible for any investigation relating to corruption, which the Commission may refer to him. Yet, he has an express statutory duty to comply with all directives of the Commission in relation to his functions (section 29(f)). Further, the powers to appoint other officers of the ICAC as well as to terminate their employment are left exclusively to the Commission under section 24.

Now, under section 19(7) of the POCA, it is left to the Commissioner’s unfettered discretion to assign to each Deputy-Commissioner such functions, duties and responsibilities as he considers appropriate. The natural conclusion to be drawn from the provisions of the POCA is that the Commissioner has absolute power in deciding against whom to initiate investigations, against whom to proceed with investigations and conversely against whom to refrain from initiating or discontinue investigations.

As a matter of fact and practice, it has been shown that as soon as investigations are started by the ICAC against any person, he is subjected to a surge of highly prejudicial public opinion, which is contrary to the presumption of innocence. People holding senior positions, especially those involved in politics, can be unduly pressurised by a Commissioner of the ICAC who can start investigations based on a mere anonymous letter. Their integrity, employment or political survival can be potentially put at stake. Such a threat may clearly prevent them from carrying out their duties in a proper manner.

Need for political will and good faith

Briefly, the end result of the POCA leaves us not far from that of the ECALA. Too much power in the hands of one political appointee normally will not lead to its being used fairly and judiciously but instead, arbitrarily. Everybody knows that absolute power corrupts absolutely. The Government and the Opposition have been criticising the ICAC. Yet, a simple majority in Parliament is enough to amend, scrap or replace it.

In the light of the way in which the Commissioner is appointed under the POCA, the great powers given to him, the absence of any effective provision guaranteeing him security of tenure, and the constitution of the Parliamentary Committee, no reasonable person will venture to assert that the ICAC can be a reliable body against corruption. It is clear that the POCA actually creates ample ground for the pulling of strings and the scratching of backs.

A Commissioner of any institution against corruption, its enquiring officers and the body meant to supervise and control the Commissioner, should all be appointed by an independent and a respected body such as the Judicial and Legal Service Commission.

The security of tenure given to the Commissioner should be equivalent to that of the DPP. His main task should be to attribute work to particular enquiring officers, a practice, of course, subject to the supervising body. Any decisions of the Commissionner or the Supervising Body should be judicially reviewable.

The team of enquiring officers should have proper legal training and should have delegated authority to investigate matters and take decisions whether to recommend prosecution or not. With regard to their powers of investigation, a good point of reference might be the French “juge d’instruction”.

Finally, inquiries should be conducted in camera and should only become public after the Department has decided to prosecute.What is proposed is very simple and is common knowledge among jurists and legislative draftsmen. What is needed is not a foreign expert but the political will and good faith to create an independent and impartial institution, free from political interference and manoeuvres.

<I>Jamsheed Peeroo, LLB(Hons) (Cardiff), LLM (Lon).</I>