Wednesday, 12 January 2011

Economic Treason

Nat O'Connor: Tags like 'Economic Treason' have been liberally applied since the outset of our economic and political crisis. Green Party backbencher, Trevor Sargent, is attempting to have a definition entered into the constitution.

Article 39 of the Constitution defines treason as follows:
Treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by this Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt.

However, on the last sitting day of the Dáil before the holidays, Deputy Sargent introduced a bill seeking to change the constitution. This was not opposed by the Government, but will be debated as a private members bill (which almost never get supported by the Government, although they are rarely advanced by TDs on the Government's side of the house either).

The proposed new text for article 39 is as follows:
Article 39
1. (as above)
2. Economic treason shall consist of actions that result in reputational damage for the country, an unacceptable economic cost, or a loss of economic sovereignty for the State.
3. Nothing in this section shall preclude the drafting of legislation, applying these definitions retrospectively.

In this context, it is noteworthy that while Article 15 (Section 13) gives immunity to TDs and Senators to arrest when going to, returning from or within the precints of either house, this immunity is lifted in the case of treason (as defined by the Constitution).

Hence, TDs heading to the Dáil to vote for the blanket bank guarantee scheme could have (in hindsight) been arrested for attempted economic treason, as this vote doubtless caused reputational damage for the country, came at an unacceptable economic cost, and does imply a degree of lost economic sovereignty for the State. Indeed, the amendment proposes that their actions could be retrospectively be defined as treason; including the actions of the Deputy proposing this amendment! And nothing in the proposed amendment requires that actions taken by TDs need to be wilfull. The damage of their actions alone is enough to constitute treason - according to the proposed definition - and it does not state how much damage, cost or loss is required for an otherwise negligent or ill informed act to become treasonous.

Such a scenario illustrates that one of the problems with this proposal is that, whereas the treasonous nature of levying war or taking up arms against the institutions of the state is fairly obvious, the intent behind ideologically-driven or simply misguided economic decision-making is not so easily shown in court beyond reasonable doubt.

The same applies to the actions of financial institutions. Many bodies seek to make money from the state, whether they sell goods and services to public bodies, or use illegal means such as bribery to gain from public decision-making (for which reason we have planning tribunals). While various forms of wrong-doing may be identified, it would seem necessary to reserve the legal term 'treason' for those who actively seek to destroy this country using financial and economic means.

It is unlikely that merely self-serving greed constitutes treason; successful paracites don't kill their hosts.

Of course, this private members bill is highly unlikely to be passed. It is legally unenforceable, not least because making legal actions retrospectively into illegal ones runs completely against human rights and the foundation of the rule of law; even if those 'legal' actions were (in retospect) morally abhorrent.

Which reinforces the argument that reactive legislation is always too late! What was required was the more painstaking - but absolutely necessary - path of reforming the law in relation to economic activity before massive damage was done to the economy. Although the damage in done, in Ireland's case, we still need to put in place tough regulation for the future. What types of financial dealing are to be illegal or restricted? What uses of subsidiary companies and off-shore banking are to be tolerated? And so on.

The future stability and prosperity of this state requires strong regulation of the economy in the public interest. Valuable parliamentary time would be better spent proposing such regulation rather than putting forward ineffective definitions of treason that fail to address the failure of Ireland's ongoing experiment with laissez-faire economics.

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