FICAC should not be the prosecuting authority for the Code of Conduct legislation because it does not enjoy the confidence of the people as being independent of the government, says Labour Leader Mahendra Chaudhry.
Mahendra Chaudhry’s full submission on the Code of Conduct Bill to the Parliamentary Standing Committee on Justice, Law and Human Rights is given below:
This Bill seeks to give effect to S149 of the 2013 Constitution requiring the enactment of legislation establishing a Code of conduct which shall be applicable to holders of offices specified therein, including public offices.
It provides processes and procedures for:
• The implementation of the Code by the Accountability and Transparency Commission (Commission)
• Monitoring by the Commission of compliance with the Code by persons to whom it applies
• Investigation of alleged breaches of the Code and its enforcement
• Protection of whistle blowers who make disclosures of breaches of the Code
• Annual declaration of assets, liabilities and financial interests of persons to whom the Code applies and for such declaration to be accessible to the public.
The responsibility for administering and implementing the provisions of the proposed legislation is conferred on the Accountability and Transparency Commission, itself a creature of the Constitution (s121).
We note, however, that the Commission is yet to be appointed and hope that it will be done without much delay.
It is somewhat disconcerting to note that members of the Commission are to be appointed, as per the Constitution, by the President on the advice of the Judicial Services Commission, following consultations by it with the Attorney General who himself is a person to whom the Code applies.
We hope for the sake of the nation, that those appointed to this august Commission will be persons in whom the people of Fiji can, justifiably, place their trust and confidence. If the appointees are seen to be partisans of the government, then the whole purpose of the legislation will be defeated.
It is equally important to ensure that any enabling legislation, guidelines and directions required to empower the Commission to fully undertake its functions is speedily enacted or promulgated following the public consultations.
This includes informing the people in their own vernacular of the nature of the legislation, the role of the implementing agency and the procedures and processes that members of the public will need to follow to report breaches of the Codes of Conduct.
Sphere of Responsibility
1.1 We propose that the Code of Conduct Act come under the sphere of responsibility of the Prime Minister as head of government. We submit also that the prosecuting authority under the Act be the Director of Public Prosecutions and not the Fiji Independent Commission Against Corruption (FICAC).
1.2 Many doubt FICAC’s ability to act independently and impartially. It is seen as an instrument specifically tasked to target the opponents of the government. FICAC is headed by a former military officer who is not qualified to be appointed to the position of its Commissioner. As such he remains Deputy Commissioner but is, effectively, the head of FICAC.
1.3 The issue of the Commissioner’s position remaining vacant for the past 9 years has been questioned in many forums. But no action has been taken to have it substantively filled. What can one, therefore, reasonably conclude from this obviously intentional oversight on the part of the authorities?
1.4 The legislative requirement for the appointment of the Commissioner is itself questionable, and undermines its independence. Under the FICAC promulgation Decree 11 of 2007, the Commissioner is appointed by the President who himself is subject to the provisions of the Code of Conduct legislation.
1.5 Secondly, the decree specifically states and I quote: “The Commissioner shall be subject to the orders and control of the President”. He may also seek the assistance and input of the Attorney General.
1.6 As stated earlier, the President himself can be investigated under the Code of Conduct legislation. Since he is empowered to order and control the Commissioner, he can order a stop to all investigations against him or his associates. Hence, it is best to have the DPP as the prosecuting authority.
1.7 By its very creation, FICAC cannot be deemed to be an independent and impartial institution. As already mentioned, it has amply demonstrated over the years, that it does not act independent of the government. My observation is not just based on public perception. I speak from experience.
1.8 I personally, as Labour Leader, wrote to FICAC outlining with evidence, details of what we regard as a scam involving an overseas company.
1.9 The case relates to a prime parcel of State land in Bayview Heights, Suva leased illegally to China Railway Engineering Group on orders from the Prime Minister’s Office. The land had been marked for civic development but was leased to China Railway arbitrarily at a nominal annual rental of $100 without proper procedures being followed.
1.10 Furthermore, commercial/light industrial development on the land was allowed to take place without it being rezoned from civic to commercial/light industrial and without Suva City Council’s prior approval for the building and engineering plans. FICAC declined to prosecute, claiming there wasn’t sufficient evidence.
PART 2: Accountability and Transparency Commission (the Commission)
2.1 Cl 6.2 – We see no valid reason for protecting the identities of the persons against whom complaints are made. The annual reports should, therefore, publish their names in the public interest. However, this should only be done where the complaint is held to be valid, has been referred to the employing or the prosecuting authority, and all action on which has been finalised.
PART 4: Monitoring Compliance…etc
3.1 Cl 10-(3) directs the Commission not to accept or investigate any complaint from an anonymous person. We submit that complaints from anonymous persons must not be rejected outright and must be investigated if properly substantiated by details and credible evidence. In such instances, the Commission can initiate the investigations on its own volition, assuming for itself the role of the complainant.
3.2 We propose this because the anonymous complainants may be well placed persons in the community who are reluctant for good reasons to expose their identity but, as responsible citizens, are prepared to assist in the fight against corruption.
3.3 Cl 12 – This clause provides for complaints to be summarily dismissed for the reasons outlined in subclauses (a)-(h). this means that the complaints are to be dismissed without any investigation at all.
3.4 Of the (8) subclauses referred to above sub clauses (a), (b) and (c) cannot be applied unless the complaint is first investigated. It could thus defeat the purpose of the legislation if the complaints are summarily dismissed on pure speculation that it may be frivolous, vexatious, politically motivated etc.
3.5. A complaint against an official or a state agency or a holder of a high public or political office must be taken seriously and not written off as trivial, vexatious or frivolous or politically motivated.
3.6 The very norms of accountability and transparency require that complaints of abuse of office, official corruption, neglect of duty, improper conduct etc must be thoroughly investigated, it being granted that such complaints must be appropriately substantiated.
3.7 Where a public authority charged with investigating such complaints is not satisfied that a complaint is fully or substantially substantiated, it has the duty to fully inform the complainant of what further particulars are required to initiate investigations into his/her complaint.
3.8 It is not in the public interest to dismiss a complaint summarily simply because it is not adequately substantiated or which in the (subjective) judgement of an official of the investigating authority, is deemed frivolous, vexatious or politically motivated.
3.9 Cl 12 (1) (c) and (d) should be deleted as the reasons given therein for summary dismissal of a complaint are dubious to say the least.
3.10 Cl 12-(1) (a) and (b) should likewise be deleted – it would be sufficient in such cases to inform the complainant, after preliminary investigation, of the reasons for which his/her complaint cannot be actioned as provided for in Cl 12-(3).
3.11 In relation to 12(c) what if the complainant had discussed the substance of his/her complaint with another person. He/she may well have done so to seek advice on whether the complaint should be notified to the investigating authority. Why should, in such a harmless situation, a perfectly valid complaint be summarily dismissed.
3.12 Cl 12 (4), 13 and 14(4) must be deleted. It is apparent that their insertion has more to do with deterring citizens to file complaints against corrupt, indolent, irresponsible holders of public office than ensuring that those who violate the Code of Conduct are dealt with appropriately.
3.13 Regrettably, penal provisions of this nature in our laws have become a hallmark of the Bainimarama government.
4.0 PART 6: Declaration of Income, Assets etc
4.1 Cl 26(1) – the date 31st January be amended to 31st March. It is not always possible to obtain all the particulars required under this section to be provided within a month after the close of the year.
4.2 Cl 26 (2) (a) – FNPF or superannuation fund moneys whether in Fiji or abroad should be included as it is an asset and must be disclosed.
4.3 Any shares held, whether directly or indirectly, in any company or corporation must be declared.
4.4 Cl 26 5 (a),(b) and (6) should be deleted and substituted by a provision requiring the Commission to publish the statements of income, assets, other interests and liabilities no later than 30 April each year in a newspaper with wide circulation or readership for the information of the general public.
4.5 The cost of such publication should be borne by the persons named in Schedule 6 of the Act.
4.6 This will bring the provision in line with those applying to office bearers of political parties under the Political Parties Decree, thus obviating the discriminatory treatment against them.
5.0 Schedule1- Code of Conduct for President, Prime Minister and Ministers
5.1 Para 4.3 – Delete all the words after the word “position” in the second line. We submit that there should not be any exceptions to the principal provision of this clause. No law should permit the holder of a public office to offer or give any advantage in any way connected with his or her position.
5.2 Para10(2): Delete the words “Except with the express approval of the appointing authority” – appearing in the first line.
5.3 Para 10.2 (a) &(b) Delete these sub paragraphs
5.4 We submit that there should be no exceptions to the rule of relinquishing all business interests once a person is appointed to a ministerial position. The same should apply to the President, Prime Minister and Ministers. Permitting exceptions to allow the holders of these offices to continue their directorships in private companies and businesses, including the holding of shares) is tantamount to leaving the door ajar to corruption or abuse of office.
5.5 Clause 11 Shareholdings- Amend the existing provision requiring the office holder to relinquish all shares and interests in any business, company, partnership, Trust or scheme for the reasons given in para 5.4 above.
5.6 Add a new provision requiring President, Prime Minister and Ministers to resign office if charged or convicted for a criminal offence.
5.7 This should be a standard provision in all other Codes of Conduct (Schedules 2-5).
6.0 Schedule 6
6.1 The following positions should be added to the schedule:
1. Judicial Officers
2. Chairpersons of all government-owned or controlled companies
3. Chairpersons of all Statutory Authorities
7.1 Penalties imposed for breaches of the legislation should be reviewed to make it fit the gravity of the offences see Cl 5(2), 13, 17 (3), 21 (1) (2), 23 (2) (4) 26 (6) 28 – $10,000 fine or imprisonment not exceeding 5 years or both is the standard penalty prescribed in the Bill for all types of offences listed therein.