Amend But Stay The Course

Good Governance and Integrity Reporting Bill

It had become abundantly clear that the Good Governance and Integrity Reporting Bill a.k.a the Bhadain Bill, which has already gone through a First Reading in Parliament, would not obtain the support of the three-quarters majority required for it to be voted into law in its original form. The first signs of revolt from within the MSM and its allies have now gone public with MPs from these parties expressing their intention to at least abstain at the crucial voting time. One MP has resigned.

Before getting into the thick of the debate about some of the fundamental issues pertaining to the safeguard of the rights and freedom of individuals raised by the Bill as presented for First Reading, it is necessary to set the scene. The vast majority of Mauritians are convinced that corruption in all its forms has reached such proportions that Mauritius seems to be literally sinking under its weight. This is why these exceptional circumstances call for exceptional measures. It has now become a matter of utmost importance and urgency that some radical measure should be taken in order to eradicate the scourge at source.

It would seem that the government wishes to capitalize on the prevailing sentiment and make hay while the sun shines. It has pressed on with the presentation of such a Bill at a time when the people are still reeling under the scale and scope of alleged corrupt practices which have been exposed since the last general elections. Unsurprisingly such haste has seemed rather suspect and the motives of government questionable. Consequently there has been a slew of reactions from all sorts of quarters, some of which one must admit are themselves not beyond suspicion as to their real motives.

First are those who rather naively think that the serious flaws contained in the Bill regarding the protection of the Constitutional rights of citizens do not really matter, because in any case it is only those who have amassed “illicit” wealth who will come under its purview. History has taught us that this kind of reasoning always leads to the most tragic consequences simply because politicians cannot be trusted to always act reasonably.

Second, there are those who genuinely wish that some measure with similar objectives and effects should be enacted after taking care of the controversial clauses which are deemed to be against the spirit and letter of our Constitution, especially as regards protection of private property as well separation of powers among the Executive, the Legislative and the Judiciary. Then there are assurances regarding the independence and integrity of the institutions which are set up under the new law.

Third, and without being judgemental, there must surely be quite a few who while hiding behind the defence of high-minded principles, have good reasons to be anxious regarding the presence of such legislation in our statute books.

As we have said above, the chances that the legislation in its present form would obtain the required numbers in Parliament are very thin. The Prime Minister and the Minister of Good Governance have already hinted that they are listening to what is being said and would not oppose reasonable amendments to the Bill which has been approved at First Reading. They have, however, been quite firm in their stand as regards their determination not to quit. One can safely presume that this is indeed what the majority of the population wishes for.

We shall leave it to the lawyers and constitutional experts to consider the amendments which need to be brought to the bill in order for it to meet the criteria mentioned above. The key principle which should guide the way forward is finding ways to make the legislation democratically palatable without robbing it of its substance.

In this connection there are two issues which while not part of the central theme of the law are closely related to the on-going debates.

One of the characteristics of any new effort to effectively achieve the objective of ensuring fair and diligent action has to do with perception of fairness and equity regarding the process of justice. No citizen in his right mind will ever support any attempt to tamper with our fundamental rights as inscribed in the Constitution. Yet there is a real danger that in the light of recent as well as less recent experiences these concepts could appear more and more abstract to a large number of citizens.

This is bound to happen when there is an increasing perception that the process of justice is no longer equitable in its treatment of different classes of people as some seem to have the wherewithal to wriggle out of the most compromising situations all the time. There are all too many instances in which people who have been indicted with white-collar crimes have finally gone scot-free after long drawn-out processes. The cases of Ponzi schemes in which hundreds of people have fallen victims to unscrupulous individuals but in which the legal processes keep dragging on are the perfect illustration of such instances of delayed justice.

In the United States, for example, following the uncovering of the Madoff Ponzi scheme or after the Enron scandal in 2002 – both far more complex cases, one would surmise – the Department of Justice acted promptly to bring the culprits Madoff or CEO Jeff Skilling to court. They have been duly sentenced to long terms of imprisonment.

Clearly such alacrity in the application of the law is an essential component of fairness in the delivery of justice in a democratic country and it only adds another twist to the saying that “justice delayed is justice denied.” This is why under the prevailing circumstances any new law which purports to effectively combat corruption must make provision for such sanitization of the process as to make the rendering of justice more transparent and deliverable within reasonable time frames.

The Leader of the Opposition has suggested that the vote on the Good Governance and Integrity Reporting Bill at Second Reading should be a “free vote” that is without party whip. Actually one wonders if he should not take his reasoning a step further. All votes for proposed amendments to the Constitution should be free of party discipline as a matter of convention.

Indeed one can convincingly argue that the spirit of the Constitution would be better served if all political parties agreed that constitutional amendments requiring the three-quarters majority should always as a matter of principle be free of the whip. This will certainly constitute a very efficient and straightforward way of applying a test of “reasonableness” to any proposed amendment to the Constitution. If indeed three quarters of the Members of Parliament have in their own free judgement decided to support it. Party whip is an effective way of ensuring the smooth running of government matters in its day-to-day operations. When it comes to an amendment to the Constitution, it may prove to be an unwarranted constraint to the freedom of judgement of elected representatives.

The latest developments regarding the future of the Good Governance and Integrity Reporting Bill are eminently positive. The Minister has already announced that a few amendments will be brought to take into account some of the most virulent but fair criticisms. Other suggestions should be taken on board in the same spirit so that the Bill does become law as soon as possible ideally with a three-quarters majority voting for it without the need for party whip.

• Published in print edition on 13 November 2015