<B>by Raj MATHUR</B>

The controversies that seem to have paralysed the good functioning of the Independent Commission against Corruption ? Icac set up under the Prevention of the Corruption Act (Poca) ? have their origin in the power given to the Chairman of the Appointments Committee to convene a meeting of the Committee.

● <B>Enormous Powers Conferred on the President</B>

Indeed the Prevention of Corruption Act (No. 5 of 2002) confers enormous powers on (1) the Chairman of the Appointments Committee, that is on the President of the Republic, and (2) on the Independent Commission against Corruption and its Commissioner. These powers have been vested in the President and in the Commissioner without any amendment to the Constitution. This, to me, is blatantly unconstitutional.

The Appointments Committee is made up of the President as Chairman, the Prime Minister and the Leader of the Opposition. It follows, therefore, that only the President of the Republic is mandated, as Chairman, to convene a meeting of the Appointments Committee. No such meeting can be held without the Chairman?s approval since the law provides that the President ?shall chair? every meeting. I firmly believe that he can only exercise his power of convocation in accordance with the advice of the Prime Minister. One wonders, in the first place, whether such a high level Committee consisting of the President, the Prime Minister and the Leader of the Opposition, can be set up without amending the Constitution itself. I have serious doubts.

The powers vested in the President of the Republic in Sections 18, 21 and 22 of the Prevention of Corruption Act concerning the appointment of the Commissioner and the two deputy Commissioners, their terms and conditions of employment and the removal of the Commissioner from office for misbehaviour are far too enormous and would appear to be unconstitutional.

● <B>President?s Independent Vote</B>

Further, Clause 18(2) of POCA tends to grant the President additional powers as Chairman of the Appointments Committee by giving him a vote on the Committee, independently of the Prime Minister. ?The President shall chair every meeting of the Appointments Committee and every decision shall, subject to Section 31(1) of the Interpretation and General Clauses Act, be taken by a majority of the vote, the President shall have no casting vote.? Thus it would seem that there are three votes to be cast on every decision, namely : the vote of the President, that of the Prime Minister and finally the vote of the Leader of the Opposition.

The President, I am afraid, cannot have an independent vote. In the exercise of his vote, he is bound to go along with the Prime Minister. Thus to all intents and purposes, only two of the Members of the Appointments Committee, namely the Prime Minister and the Leader of the Opposition have effective votes. The President must vote with the Prime Minister and thus the latter?s view should always prevail. It would certainly be desirable to empower the President along the lines suggested by Section 18(2) of Poca. However this can only be done after it has been explicitly laid down in the Constitution. Power can only be conferred on the President on the Republic if the Constitution itself is amended. An ordinary legislation cannot confer any power on the President.

● <B>Westminster-based Parliamentary Democracy</B>

Lest it be forgotten, let us repeat that Mauritius is under a Parliamentary Democracy based on the Westminster Model. Under this system of Government and Politics, the President of the Republic is a constitutional Head of State. He does not exercise any substantial power, except of course, powers over appointment of constitutional office holders like the Chairman and Commissioners of the Public Service Commission, which are conferred expressly upon him by the Constitution. In the exercise of the powers (not expressly conferred upon him) under the Constitution or under any law, he is bound to act in accordance with the advice of the Cabinet or of the Prime Minister or of a Minister acting under the authority of the Cabinet. This is made very abundantly clear in Section 64(1) of the Constitution :

?In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet except in cases where he is required by this Constitution to act in accordance with the advice of, or after consultation with any person or authority other than the Cabinet or ?in his own deliberate judgment.?

● <B>President must act in accordance with Prime Minister?s advice</B>

Unlike the defunct Economic Crime Office there has not been any constitutional amendment setting up the office of Icac and its Commissioner. Thus the powers seemingly vested in the President of the Republic by Poca are purely unconstitutional. I contend that in the exercise of his powers under Poca the President of the Republic is bound to act in accordance with the advice of the Prime Minister. The President cannot have an independent say ? independent of the Prime Minister on the Appointments Committee. He is bound to act on the advice of the Prime Minister. Should the Prime Minister feel that the Appointments Committee must meet to discuss the problems of Icac, the President of the Republic has no choice but to abide by the advice of the Prime Minister, as per the provisions of Section 64(1) of the Constitution cited above.

● <B>POCA ? An Ordinary Legislation</B>

One also wonders if any ordinary legislation passed by Parliament with a simple majority, can invest an authority like Icac and its Commissioner with so much powers. Only constitutional office holders like the Director of Public Prosecution (DPP) ?are not subject to the direction or control of any other person or authority?. It would seem that Poca which has been passed by Parliament in its ordinary law-making powers and not in its constituent powers has vested the Commissioner of Icac with powers similar to those held by the DPP, except that the Commissioner is accountable to the Appointments Committee. In fact Section 20(3) of Poca reads ?

?Subject to this Act, the Commissioner shall not be under the control, direction of any other person or authority.?

This clause of the Poca is, to my mind, contrary to the Constitution. The status of independence of a public officer can only be conferred by the Supreme Law of the Land. It cannot be conferred by an ordinary legislation. I, therefore, hold that the Commissioner of Icac can only be invested with an independent status through an amendment of the Constitution...

● <B>Recommendations</B>

The clauses of Poca repugnant to the Constitution must be repealed forthwith. This can be done by a simple parliamentary majority.

Alternatively the Constitution can be amended to : confer on the President the powers seemingly vested in him by Poca, provide for Icac convert the post of the Commissioner of Icac into a constitutional one with security of tenure, similar to the Director of Public Prosecutions (DPP), the Director of Audit and the Commissioner of Police with a view to ensuring the independence of the Commissioner.

On a personal note, I would like to remind the reader that I have never claimed to be an expert on constitutional matters. I only happen to hold the chair of Political Science at the University of Mauritius. In my capacity as Professor of Political Science, I am, at times, solicited by the written/spoken/visual press, to intervene in debates on the Constitution. At other times, the debates are so compelling that I feel duty bound to get involved and in the process, humbly bring my contribution, however modest this may be. But I have never bothered to consider whether my contribution will be music to the ears of the authorities or not.

My motto has always been ?publish and damn the consequences!?