The right to work and debarment in the financial market
- Robert Vivian
It is troubling in a constitutional democracy that laws exist allowing people to be deprived of their livelihoods without any inquiry at all.
Who in their right mind would believe there is a law on our statute books which is interpreted and applied in such a way that it makes it possible for an employer to deprive an employee, without the due process of law and without any proper inquiry, indeed any inquiry at all, of their livelihood nationwide and without any demonstrable knowledge of the legal requirements?
Once the employee is debarred in this way from working, the only means left for them to regain employment is to approach the courts at enormous personal cost and risk.
Such a system has no place on the statute book. It is outrageous and should evoke a great sense of injustice and anger within any normal person. How did this situation become possible?
The withdrawal, with immediate effect, of the guideline on the determination of reappointment of debarred representatives (July 13 2011) announced by the Financial Services Board (FSB), the regulator, on October 20 2017, has highlighted the existence of this questionable system. This withdrawal has made the way a debarred person can become un-barred even more unclear.
The Financial Advisory and Intermediary Services (FAIS) Act, which contains inter alia the debarment system, is testimony that the impossible can become possible. The impossible is that someone without the slightest idea about law or fundamental legal principles, was let loose to draft a piece of legislation that, even more inconceivable, got past industry consultative bodies, law advisers, parliamentary committees, and Parliament itself, and now, is tolerated by the judiciary. For this piece of legislation to even exist in a constitutional democracy is troubling, to say the least.
The right to work is part of the fundamental principle of liberty.
Anyone must be able to sell his or her services. If not, that person is doomed, by force, to starvation. For this reason, society has always been disturbed when someone comes along and attempts to stop people from working. One need only think of the concern that exists, and has for centuries, with issues such as restraints of trade, closed shop agreements, national minimum wages, job reservation which was practiced in the apartheid era, the exclusion of Jews in Nazi Germany from the economy and so on.
These measures are all a cause of great concern because they impinge on the fundamental right to work and on liberty.
In the late 1800s, people began to lobby for laws to keep others out of their professions, to deny outsiders the right to work, crying "public interest". Many suspected, though, that this exclusion was driven by self-interest, private interest and not public interest. The medical profession began to lobby for licensing and registration of doctors, dentists, nurses, pharmacists and so on. Other professions, such as lawyers, followed suit. Then came the Great Depression when barbers, beauticians, undertakers, chiropractors and so on joined the stampede for registration and licensing to keep others out and thereby to protect themselves, always crying "public interest".
These, at least, had a system. Pressure to exclude others from their guild came from the "professions", not the government. To join a guild usually required years of education, training, experience and joining a professional society which had its rules of conduct. Once in, it was difficult to expel a member. This is not surprising since the expelled member would be deprived of the right to work. The member to be expelled had to be accused of a breach of the professional code, and then subject to an