Legislation, legislation and… legislation

By R.V. 

“We have heard from Ministers (who are strongly minded to enact legislations) that they will introduce legislations to amend the constitution, regulate police investigations, sanction agencies which import overseas labour, provide for harsher penalties against criminals, repeal the Abolition of the Death penalty Act, introduce a new Ushers Act and fight piracy and so on. It seems that legislative hyperactivity has become a permanent feature of our governance. In the process, the biggest loser is the common man and woman who are affected by the legislation but never understand what it is all about…”

The rule of law was at the heart of the keynote address made by Kamalesh Sharma, Secretary General of the Commonwealth, to hundreds of Commonwealth lawyers, judges and members of civil society at the 17^th Commonwealth Law Conference in Hyderabad. Mr Sharma also praised India’s justice system for being the guardian of the nation’s Constitution. He said the Supreme Court has played a pivotal role in interpreting and championing human rights.

Pointing to the Trinidad and Tobago Affirmation of Commonwealth Values and Principles adopted in 2009, the Secretary-General said that member countries affirmed that their country’s legislature, executive and judiciary are the guarantors of the rule of law and access to justice. They also declared that an independent judiciary is fundamental to the rule of law and is enhanced by effective, transparent, ethical and accountable governance.

The rule of law would be meaningless though, unless the law is accessible and so far as possible intelligible, clear and predictable. If the function of criminal law is to discourage criminal behaviour, a person cannot be prevented or discouraged from criminal behaviour unless he understands what the law provides and what is it that he should not do. Similarly, unless I understand what my rights and obligations are, it is unlikely that I would wish to enter into a business relationship. No transaction would be possible if there is a lack of clarity/certainty. No citizen would be able to appreciate the legal rules applicable to him unless the law is formulated with sufficient precision to enable him or her to regulate his conduct.

Every year after the budget is voted by the National Assembly, the Finance Bill is introduced to implement the budgetary measures. It is astonishingly complex and I doubt whether the Members of the Assembly except possibly for a couple of them fully understand what really they are being called upon to vote. The truth of the matter is that they barely understand the implication of the Bill and most of them when debating, would choose to focus on politics rather than on the Bill itself.

The tragedy is that not a single parliamentarian has even bothered to protest against the fact that all statutes are introduced in the House under a certificate of urgency. This process has enabled Ministers to by-pass the requirement to give advance notice of a Bill to the Opposition and the public at large. This also explains why the quality of debates in Parliament is so poor. No wonder many statutes turn out to be poorly drafted, unintelligible, and deeply confusing. There is a tendency to believe that the more statutes a Minister enacts, the better he has performed as a politician. The result, as a former Judge once observed, is disastrous since government ends up rushing too many pieces of complex legislation through Parliament in too short a time.

Take the Non-citizen Property Restriction Act, which was enacted in 1975 to provide for specific instances whereby a non-citizen may acquire property in Mauritius. There is a rationale to the provisions of the Act since foreigners can easily inflate the price of property in Mauritius and reduce the chances of Mauritians to own property in their own country. It is a vital piece of legislation. We know for instance that foreigners can own property under certain schemes such as IRS and ERS subject to certain specific conditions laid down under these schemes. Yet we have seen a proliferation of schemes devised in the form of trusts to circumvent the application of the Non-citizen Restriction Property Act.

The presence of a community of South Africans on the west coast of Mauritius is explained by the use of such schemes which have been designed by some notaries taking advantage of an ambiguous provision under the Act to circumvent the Non-citizen (Property) Restriction Act. This is the price we are paying for the numerous amendments that have been brought to the Act. The problem may also lie in the manner we proceed to amend our legislation which occurs in a rush so much so that the real will of Parliament is never known. Part of the problem also resides in the fact that the language used is unintelligible at a time when plain English is widely accepted in many jurisdictions as the legislative language.

Last year we enacted over 50 statutes and regulations. Since the beginning of the year we have heard from Ministers (who are strongly minded to enact legislations) that they will introduce legislations to amend the constitution, regulate police investigations, sanction agencies which import overseas labour, provide for harsher penalties against criminals, repeal the Abolition of the Death penalty Act, introduce a new Ushers Act and fight piracy and so on. It seems that legislative hyperactivity has become a permanent feature of our governance. In the process, the biggest loser is the common man and woman who are affected by the legislation but never understand what it is all about. 

* Published in print edition on 11 February 2011