Nominations to the FCC: The Double Game of Commissioners

The case of Junaid Haroon Fakim highlights the tensions between professional expertise and institutional independence. This lawyer was appointed as a commissioner at the FCC while continuing his private practice, raising questions about the compatibility of sensitive public roles with independent professional activities.

The controversy intensified after his lawyer, Me Urmila Boolell, Senior Counsel, confirmed that he held a part-time position at the FCC. How can a legal practitioner participate in discussions about cases that may involve individuals he interacts with in his private practice?

The legislation is clear. Article 7(3)(b) of the Financial Crimes Commission Act 2023 states that "commissioners are appointed on a part-time basis." The legislature has chosen to open the institution to experienced professionals from various sectors. Article 7(2) specifies that these commissioners must be "individuals with sufficient knowledge and experience in the fields of law, banking, accounting, finance, financial services, economics, or fraud detection."

"The goal is to enable the state to rely on established professional skills, rather than solely on administrative careers," explains lawyer Bilaal Chattaroo when asked about this issue.

However, safeguards are in place. Article 8(6)(a)-(b) of the Financial Crimes Commission Act imposes a recusal obligation when a commissioner has a direct or indirect interest in a matter. "A commissioner who finds themselves in a situation where their neutrality could be compromised must withdraw from deliberation and decision-making," clarifies Me Chattaroo.

The issue of professional secrecy complicates the situation. The Code of Ethics mandates in Article 5.2 that "a lawyer must respect the confidentiality of all information given by their client," an obligation without a time limit, according to Article 5.3. How can this requirement be reconciled with an institutional role? "He simply needs to indicate that he has advised the concerned individual without disclosing the nature or content of that advice. This preserves both confidentiality and impartiality," responds the lawyer.

"Real independence matters, but perceived independence matters just as much," he adds.

Yet, the challenge goes beyond obvious cases. "The problem is not the conduct of the lawyer; it is structural," analyzes Me Chattaroo. In the realm of financial affairs, professional interconnections and economic implications are not always immediately visible. A commissioner may accept a task without knowing of a future involvement with a former client. Conflicts of interest can thus "emerge late," a phenomenon the lawyer describes as a deferred conflict of interest.

"It is not about questioning individuals, but about examining the coherence of the institutional model," he insists. In the current legal architecture, the director general of the FCC performs a full-time operational role, while commissioners primarily contribute to oversight, governance, and ensuring procedural integrity.

To maintain public trust, Me Chattaroo identifies two options. The first: appoint commissioners on a full-time basis, with remuneration sufficient to abandon all private activities. The second: maintain their part-time status while "refocusing their role on oversight and governance, without participation in operational decisions on individual cases." This option, he specifies, "does not diminish their role but positions it where it best protects the integrity of the institution."

The stakes extend beyond the legal framework. "Real independence matters, but perceived independence matters just as much," emphasizes the lawyer. In a country where the economy relies on market trust and international partners, institutional credibility is as much about economic stability as it is about the law.

A targeted revision of the law might be considered, not in haste, but with a view toward coherence. "This is not a personal or circumstantial reform. It would be a reform of institutional integrity," concludes Me Chattaroo.