The Financial Crimes Commission (FCC) has issued Guidelines on the Preparation and Implementation of Standard Operating Procedures Manuals by Public Bodies. The FCC has included among the institutions that have to comply with the Guidelines bodies established or set up under any enactment which perform judicial or adjudicative functions. Failure by any person to adopt and enforce the guidelines issued by the FCC may lead to legal consequences as provided under section 141(5), and the punishment ranges from a fine of not less than 50,000 rupees to not more than 500,000 rupees.
That the FCC issue guidelines on good governance in order to remind those concerned when taking major decisions involving finances is commendable. Such a move would deter any institution involved and its employees from indulging in bribery or gratification and any act of impropriety in the discharge of the functions of that institution.
The FCC Act provides for offences that may be committed by public officials, including members of the judiciary. These offences are bribery and gratification. If a public official commits any of these offences, the full force of criminal law will come into operation against the suspected offender. The FCC is an executive commission in the investigation and prosecution of financial crimes under the aegis of the Director of Public Prosecutions. The question that has arisen in a public debate is whether the FCC is mandated to issue guidelines to officials who are mandated to perform judicial functions.
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"A distinguishing feature of our Constitution, like that of some of the new Commonwealth countries, is the splitting of executive functions between what one might call the Political Executive, which remains answerable to Parliament, and an independent Non-Political Executive, in specific matters, consisting of, among others, the Director of Public Prosecutions, the Service Commissions and the Electoral Supervisory Commission, which are not answerable to Parliament. The purpose of this device is, institutionally, to insulate certain areas in the conduct of public affairs from political responsibility and control, thus ensuring their autonomy and independence." (Supreme Court in 1994).
To allow an executive body to interfere in the judiciary or to issue directives to it would be a breach of the separation of powers, which is a cardinal principle of our Constitution. Separation of powers based on the rule of law was described by British judge Lord Steyn as "a characteristic feature of democracies": The separation of powers doctrine must be applied subject to the specific principles of the Constitution, which allows power between branches of government to be clearly demarcated. In 2006, the Privy Council explained the principle of separation of powers as applicable to Mauritius as follows: "First, Mauritius is a democratic state constitutionally based on the rule of law. Secondly, subject to its specific provisions, the Constitution entrenches the principle of the separation of powers between the Legislature, the Executive, and the Judiciary. Under the Constitution one branch of government may not trespass upon the province of any other."
In a landmark decision given in 1982, the late Chief Justice wrote: "I hope that Parliament will never again resort to such an ill-advised piece of legislation. In our country, which has no army, the stability of the Government does not depend upon force, but upon the consensus of the people. And that consensus itself derives from confidence in the rule of law. The rule of law is the citadel which guards the people against despotism. It is equally the citadel which guards Government against anarchy. If any part of the wall crumbles, the enemy is free to widen the breach, and the citadel is lost. If Government itself, by usurping a judicial function to which it has no right, undermines the rule of law, it destroys the very foundation upon which it is built." The decision held that legislation that was intended to render ineffective a decision of the Supreme Court was unconstitutional and was an interference in the judicial sphere.
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What the FCC guidelines aim at doing is to apply anti-corruption requirements to bodies with judicial and quasi-judicial functions. In addition, there is the threat of prosecution and punishment in the case of any default by judicial bodies. The Constitution is the supreme law of the country. An executive body like the FCC cannot override constitutional principles on separation of powers. The question may be asked whether an executive investigative institution like the FCC should be vested with power and authority to query or enforce administrative directives on constitutional institutions that are mandated to operate independently from any executive directive or pressure.
