Idle questions

With the probable passing of the Constitutional amendment, why should government balk about tackling all other sources of unexplained wealth acquisition, specially since the virtuous many would have no difficulty in justifying their assets?

By the time of this issue of MT, our MPs will have decided, on the basis of political line-toeing or on their own deliberate judgement, whether our Constitution needed to be amended, so as to include, among the numerous other provisions for legal forfeiture, an additional capacity of confiscation of “unexplained” property and assets through administrative processes that would be discharged by political appointees and chamber magistrates operating on “balance of probabilities”.

Naive observers would have thought that the numerous provisions for property deprivation, and, in particular, Section 4a (ii) “…by way of penalty for breach of the law or forfeiture in consequence of the inability of a drugtrafficker or a person who has enriched himself by fraudulent and/or corrupt means to show that he has acquired the property by lawful means…” were amply sufficient for strengthening or voting new laws to tackle illicit enrichment and asset confiscation. The real objective of the proposed amendment, it seems, is to provide maximum legal and constitutional security to the accompanying Badhain Bill.

That would indeed be a far-reaching Constitutional amendment, brought in by SAJ himself, and, quite rightly, numerous informed views have been expressed by civil society, political parties and, most particularly by the learned fraternity of constitutionalists, barristers and lawyers who will deal in courts with laws attempting to define consequential applications of “unexplained wealth”, in particular, the Badhain Bill if voted through, even on simple majority.

The latter has clearly a politically driven intent as many Government associates have been at pains to point out, institutes a political appointee Agency-cum-Board structure with no accountability, aims at fostering a nation-wide spirit of “delation”, and, despite numerous amendments, still carries enough unresolved issues to guarantee lawyers a field day in courts. We may know by this Friday or earlier whether the Bar Council suggestion that consultations towards a well-drafted strengthening or consolidation of POCA, MRA, Asset Recovery and financial fraud laws might be far more effective than a hastily concocted legislation open to challenge, will have fallen on deaf ears.

Yet almost everybody agrees that such a consolidation should have been a top government priority. So too should have been the regulation of massive sources of unexplained and uncertified enrichment through political campaigns and electoral processes.

An idle question arises then: do the definitions of wealth that should be “explainable” to a politico-administrative structure in the Badhain Bill (less than seven years; applicable to physical owners and not companies, sociétés or trusts; applicable above Rs 10 million; applicable only to Mauritian nationals…) imply that all other forms of wealth acquisition in Mauritius since Independence days have been safely explained away?

For instance, the recent Truth and Justice Commission four-volume report made detailed research and recommendations about lands that might have been dispossessed by powerful vested interests. The trials and tribulations of those who feel they might have been unfairly dispossessed, whatever the merits of their claims, are destined for years of cumbersome processes in courts with little State assistance.

Since the reversal of onus of guilt is being contemplated for unexplained assets in the Badhain Bill, this government (or any future one) may not be reluctant to making proof of legitimate ownership a responsibility of vested interests against whom prima facie claims are being made by those who feel unjustly dispossessed by history.

With the probable passing of the Constitutional amendment, why should government balk about tackling all other sources of unexplained wealth acquisition, specially since the virtuous many would have no difficulty in justifying their assets?


* Published in print edition on 4 December 2015

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