Peerthum v Independent Commission against Corruption and another

Secondment of a police officer to an independent anti-corruption body under the Prevention of Corruption Act 2002, section 24(5)(b), does not remove the officer from the police service or transfer ultimate command and discipline away from the Commissioner of Police. The officer remains a police officer with ordinary police powers while functioning within the Commission. The Commissioner’s designation is a voluntary, temporary delegation and remains revocable. This arrangement does not infringe Constitution sections 91, 71(4) or 118(4). A seconded officer is not an ICAC officer appointed under section 24 and therefore does not rely on ICAC’s limited arrest power under section 53. The appeal was dismissed.

The appellant, a senior local government officer, was investigated by the Independent Commission against Corruption and was arrested and provisionally charged on four occasions by a police officer working for ICAC under section 24(5)(b) of the Prevention of Corruption Act 2002. He challenged a further proposed arrest and, indirectly, the earlier arrests. He argued that a police officer could work for ICAC only under section 24(5)(a), with leave without pay, and that secondment breached sections 91, 71 and 118 of the Constitution. The constitutional challenge failed before the Supreme Court of Mauritius (Court of Civil Appeal). The appeal concerned whether the secondment arrangement was unconstitutional.

Appeal dismissed. Lord Hughes delivered the Board’s judgment.

1. Nature of secondment. Section 24(5)(b) provides for the secondment of a police officer to ICAC. A seconded officer remains a member of the police service and is not removed from the office of police officer. He retains the ordinary powers of arrest available to a police officer.
2. Control and discipline. The secondment is effected by the Commissioner of Police, who designates the officer and may withdraw the designation. The officer may function within ICAC and receive instructions from its senior officers, but this is a temporary and voluntary delegation of part of the Commissioner’s control. Ultimate control remains with the Commissioner. If irreconcilable instructions arose, the Commissioner could terminate the designation, so his instructions would prevail.
3. Constitutional provisions. The arrangement therefore does not amount to removal from office under section 91 of the Constitution. It does not subject the Commissioner, or the Disciplined Forces Service Commission, to unconstitutional control under sections 71(4) or 118(4). The Commissioner’s administrative circular confirmed that seconded officers remained under police control and that arrests required his written authority.
4. ICAC status and arrest powers. A seconded officer is not an ICAC officer appointed under section 2 of the Prevention of Corruption Act 2002. The Act distinguishes contract recruitment under section 24(5)(a), which involves leave without pay, from secondment under section 24(5)(b). Contract recruits have ICAC’s limited arrest powers under section 53; seconded police officers retain ordinary police powers.
5. Confidentiality and other matters. The confidentiality oath under section 81 and Schedule 2 is compatible with continued police status. The Board followed the principal conclusion reached in Ha Yeung v ICAC [2003] SCJ 273, but left open whether a seconded officer additionally appointed acting Director under section 29 could exercise both capacities. Complaints about repeated arrests or trial delay were not before the Board and were matters for the trial process.

• Privy Council: in [2014] UKPC 42, dismissed the appeal.
• Supreme Court of Mauritius (Court of Civil Appeal): rejected the constitutional challenge. Leave to appeal was granted under section 81(1)(a) of the Constitution.