The Inglorious Republic

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Last December 2014, the population of Mauritius was able to avoid the constitutional amendments that would have transformed Mauritius into an autocratic state known to all as the Second Republic. Today we face, without any debate, similar inglorious amendments which open the floodgates to the repression of our fundamental rights. This proposed law inevitably plunges us back into the medieval dark ages of social, economic and legal obscurity. This state of affairs can only be described as an Inglorious Republic. The present government was mandated by popular decree to end the gluttonous ambitions of a self-appointed King, but certainly not to be replaced by a reckless adviser to the Tsar and his son.

Our fundamental rights and freedoms are the direct descendants of the The Declaration of Rights enacted in England in 1689. The Act asserted recognised ancient rights and liberties and amongst them, “that fines or forfeitures before conviction are void”. This aspect of English history is known as the Glorious Revolution of 1688 and came about when the monarchy finally accepted constraints from Parliament.

People had fought for and won more rights and this, in turn, transformed the politics and thus the economics of England. The new balance of power between Parliament and Crown made government more credible, and credibility allowed the government to favourably reorganise its finances. The Constitutional changes made property rights more secure and thus promoted economic development. The Crown could no longer arbitrarily tax citizens or expropriate property.

Niall Ferguson, Professor of history at Harvard, and a fellow of Jesus College, Oxford, have argued that the success of England thereafter was due to the good functioning of its democratic institutions, the rule of law, and the protection of individuals from arbitrary expropriation of property. So, as these same institutions and rights would fail or begin to fail, as over the last decades, so we now face crisis.

When it comes to regulation of financial services and banking the issue is whether or not additional regulation can improve matters by reducing the frequency or magnitude of fraud, or future financial crises. Professor Ferguson is of the view this is highly unlikely and goes further to say that new regulations may have precisely the opposite effect. He adds that legislators and regulators seem to act with disregard of the unintended consequences of the new law or regulation. Further he comments, it seems that the balance of opinion favours complexity over simplicity; rules over discretion; codes of compliance over individual and corporate responsibility, which is based on a flawed understanding of how the financial sector markets work. He believes that excessively complex regulation is in fact the disease of which it purports to be the cure and that “the rule of law has many enemies, one of them is bad law”.

Keeping the above in mind, the Minister of Financial Services, Good Governance and Institutional Reforms has tabled three Bills in Parliament. These are (a) The Constitution (Amendment) Bill which purports to amend the Constitution and allows for the confiscation of property of an individual without conviction, (b) The Good Governance and Integrity Reporting Bill, this purports to promote a culture of good governance and integrity reporting in Mauritius; stimulate integrity reporting in the public and private sectors; encourage positive reports of acts of good governance; disclose malpractices and recover unexplained wealth; and protect and reward persons making disclosures and reports. The Stasi practice of rewarding informers in East Germany springs to mind. This will add more over regulation and paranoia to an already burdened society and financial services sector, and (c) The Asset Recovery (Amendment) Bill for the sole purpose of shifting the control of the Enforcement Authority when it comes to matters of confiscation and recovery of property under the Asset Recovery Act, away from the independent institution of the Director of Public Prosecution, to the Financial Intelligence Unit, a creation of The Financial Intelligence and Anti-Money Laundering Act and to the control of the Executive.

It is blatantly obvious that we are moving away from the enshrined fundamental rights of the citizen engraved in our Constitution and at the same time regressing by 400 years beyond the days of slavery. The tragedy will, it seems, begin with the possibility of arbitrary expropriation of property, just as the monarchy in England did prior to 1689.

Who in their right mind will want to invest or indeed live in a country where there is a suspicion of insecurity in property rights?

What financial services sector will thrive and prosper where guarantees against expropriation are in jeopardy?

More alarmingly, once it is shown that a fundamental right can be baffled with such ease, who is to say that other rights will not disappear with the same disconcerting facility? It was never the popular or moral mandate of Government to touch our fundamental rights, yet here we are.

The passing of these laws will signal the beginning of the end of society as we know it, for the worse, I believe. Thus, all members of the National Assembly should be alert to the consequences of their individual votes, as history will bear witness and stand in judgment. A vote in favour of such law is an insult to all those who fought for your freedoms, to all those who slaved for your wealth and comfort and a burden for all our children and the generations to come. Shame that such bills should even be tabled.

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