Protecting Democratic Values

Social media & ICTA’s Consultation Paper

We trust patriots within government spheres will be mindful of further downward slides on any international scale of democratic values

By Jan Arden

Many things might have caught our attention during the pre-budget weeks but undoubtedly the Supreme Court judgment in the Vinod Seegum appeal, already extensively covered by Lex in a previous MT issue, was an understandable relief for the appellant, but also a cardinal piece of legal and constitutional clarity even for us non-initiates. In layman terms, the learned judges made clear their opinion that all laws, and in this case, laws which portend to criminalize such offenses as “causing annoyance” through an IT medium must abide by the principle of certainty and clarity.

“After the ICTA Consultation Paper episode, both the AG and highest spheres of government would have taken note of the joint statement issued this Sunday by the G-7 and guest participants including PM Modi, reaffirming and encouraging the cardinal values of “freedom of expression, both online and offline… that safeguards democracy and helps people live free from fear and oppression”. The statement goes on to single out “politically motivated internet shutdowns” as one of the threats to freedom and democracy…”


In the absence of such “certainty” about the specific term “causing annoyance” from legislators, the SC justices, quoting extensively from relevant jurisprudence in UK and India, deemed that the law (replaced since) was unconstitutional, sufficient to quash the condemnation against Mr Seegum without even going into the merits of other grounds of appeal. “In application of the principle of legality, any legislation which is hopelessly vague should be struck down as unconstitutional,” stated the judges rather bluntly. Where some flexibility is unavoidable (e.g. drug trafficking), the offenses must still be spelt out with sufficient clarity for ordinary citizens to know when they might fall foul of the law.

It is a landmark judgment that is likely to blow out of the water the successor ICTA law of 2018, where the phrase “likely to cause annoyance”, has replaced the previous formulation “intent to cause annoyance”. In other words, with the new ICTA law (2018) stoutly defended by our learned Attorney General in Parliament, prosecution do not need to provide proof of intent to cause the “hopelessly vague” annoyance, nor how frequently or how long the annoying activity has been going on. Any complaint of “annoyance”, say by any very thin-skinned official or politician, can lead to police vans at your house in the wee hours of the morning and a period of custody. To make matters more all-embracing, albeit in a North Korean spirit, the term “humiliation” was added to the list of “hopelessly vague” grievances subject to the expeditious zeal of authorities.

We might recall here the heated controversies in France late last year when French authorities, pressed by their police trade unions, tried to suppress and criminalize social network posts that would show identifiable policemen in action. In a supercharged atmosphere where police are reportedly fed up of being stone-pelted, vilified and threatened, while police brutality is decried in other quarters, the French government’s stated and laudable intent was to “protect those who protect us” according to the Interior Minister Gerald Darmanin. With the backing of President Macron, ignoring wide outcry from society demanding that some repressive clauses be redrafted, the Bill was subject to an expedited procedure in the twin houses of Parliament, and ultimately voted on 24th November 2020.

The left parties, MPs and Senators duly appealed the french Constitutional Court (also appealed to curiously by the PM Jean Castex, to “remove all doubts”) and the latter gave its awaited and important ruling this 20th May 2021. In a veritable camouflet to authorities, seven key controversial clauses felt the axe of the Constitutional Court, two being branded as unconstitutional, and five others condemned as “cavalier”.

In particular, the proposal for free and unfettered use of facial-recognition drones by police in its line of duties was deemed far too wide-ranging and an infringement of a person’s right to privacy in a public space or in a peaceful manifestation. As for the offense of “provocation” for posting a policeman’s images and clips in action, the Court ruled, as here, that the terminology and offense were too vaguely worded and as such were in violation of the cardinal principle of legality and certainty.

Even if there are undoubtedly significant differences between our legal and judiciary set-ups, those remarks made by the french apex constitutional court can only be viewed as comforting for all those who feel that an appropriate balance has to be struck between conflicting demands for public safety and personal liberties. The Court’s comments will be noted by our legal establishment as they are of wide import: in particular that the provisions of the proposed french law “n’assurent pas une conciliation équilibrée entre les objectifs de…prévention des atteintes à l’ordre public et de recherche des auteurs d’infractions et le droit au respect de la vie privée…”.

Home Minister Darmanin immediately and wisely responded that, having taken note of the Court’s ruling, he would have the legislation redrafted and resubmitted to Parliament to take into account the apex court’s observations. Our AG will have much to commend himself if he were to adopt some of that laudable attitude and cause a thorough revision of the 2018 ICTA law accordingly.

We are in many ways lucky to be preserved from a large variety of the ill usage of social networks for such things as terror recruitment networks, troll farms for raising fake debates, outside influence by countries which seem to harbour fake agencies for influencing democratic or electoral processes and those who ply sectarian hate propaganda. Nevertheless, it does require a constant and equitable vigilance, without partisanship, from credible and efficient authorities rather than the hijacking of personal liberties in the name of public safety, particularly when political motivations and calculations cannot be excluded.

After the ICTA Consultation Paper episode, both the AG and highest spheres of government would have taken note of the joint statement issued this Sunday by the G-7 and guest participants including PM Modi, reaffirming and encouraging the cardinal values of “freedom of expression, both online and offline… that safeguards democracy and helps people live free from fear and oppression”. The statement goes on to single out “politically motivated internet shutdowns” as one of the threats to freedom and democracy as reported by the Indian Express. We trust patriots within government spheres will be mindful of further downward slides on any international scale of democratic values.

* * *

Budget: where are the sacrifices?

We will leave the detailed examination of the 2021-2022 budget to those who have pored over its lengthy paragraphs and annexures, including the numerous laws appended for amendment in the Finance Bill. It is unfortunate in that respect that this feature for necessary consequential amendments is increasingly abused to surreptitiously introduce legislative changes that deserve a full debate and discussions in Parliament.

“most observers were surprised by the Budget’s long shopping list of projects round the island assembled from Ministries and the overbearing weight of drains, roads or other infrastructure projects ranging from markets to school yards. There are some noteworthy items naturally as the expressed desire to promote “green” energies or the increased attention to the education of special needs children. While these are welcome new initiatives, we were rather overwhelmed by the resurgence of projects that have clearly been enunciated in several previous budgets…”

The introduction of the Contribution Sociale Généralisée (CSG) was a case in point in last year’s budget, causing such controversies that the matter is under judicial review at our highest court. Government and the MoFED may or may not have a defendable case to replace the contributive National Pensions Funds by a tax-based French-inspired CSG, notwithstanding the recurrently expanding “trou de la Sécurité Sociale” in that country. But many technical questions surrounding tax levels and pension sustainability in the future, not to mention the electoral promises made in 2019, were far too important to be dismissed by the mighty pen of even our best Argentiers in a Finance Bill annex.

Whether prodded by the pending court review case or the assessments of Business Mauritius regarding future sustainability and tax-levels, or by the disquiet expressed by the World Bank, a full debate in Parliament should have been necessary, a matter which the Minister seems to have now finally acknowledged. It must be borne in mind that the CSG Act was passed in a period of major stress in most socio-economic sectors, which could have called for reduction in government spending rather than further bloating government coffers with tax revenues.

As for the delivery of the budget itself, most observers were surprised by its long shopping list of projects round the island assembled from Ministries and the overbearing weight of drains, roads or other infrastructure projects ranging from markets to school yards. There are some noteworthy items naturally as the expressed desire to promote “green” energies or the increased attention to the education of special needs children. While these are welcome new initiatives, we were rather overwhelmed by the resurgence of projects that have clearly been enunciated in several previous budgets.

As for the capacity of our personnel and administrative resources in various Ministries dealing with public infrastructure, we can hope but remain skeptical about their ability to handle such massive investments in a short time span. Time will tell whether the Minister’s buoyant optimism is justified and whether the level of wastes in the future Audit Report for 2021-2022 has been held in check or curbed in such difficult straits. The consumer and taxpayer might be tempted to ask where are the sacrifices coming from?


* Published in print edition on 15 June 2021

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