“To resign would be stupid. The best option is to go to Court”

Opposition vs Speaker Tussle

* ‘Standing Orders cannot be used to trample on democratic principles like frustrating a member of the Opposition from fulfilling his duties’

* ‘The Speaker personifies the dignity of Parliament and he must act accordingly’

By LEX

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What are the options available to the Opposition MPs, namely the Labour Party’s Arvin Boolell,  Paul Berenger and Rajesh Bhagwan of the MMM, named by the Speaker and subsequently suspended for the present session of Parliament on a motion tabled by the prime Minister, to regain their seats in the House and exercise their constitutional right of representation in Parliament? Tender “unreserved apologies” to the House, or provoke by-elections with a view to seeking a popular vote to censure the Speaker, or take up the matter to the Supreme Court? It would seem that the third and last option is being seriously considered by the three MPs in the hope that the Supreme Court would intervene in this matter with a view to protecting the Constitution rather than shy away on the premise of “parliamentary supremacy”. Lex addresses the implications of these options in the Qs & As that follow. Read on:

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* Under the heading ‘The Speaker’ posted on the National Assembly webpage, we are informed as follows: “One of the most important qualities of a Speaker is impartiality. He mu​st be above party politics. Once elected to the Chair, he owes his loyalty to the dignity of Parliament.” Should that be a tall order for a political nominee?

Whether a Speaker belongs to a political party or not, whether he has any political views or affinity, he must discard all political considerations and strive to discharge his duties impartially once he takes the chair as Speaker. He personifies the dignity of Parliament and he must act accordingly.

* Should the post of Speaker be better left to a lawyer by training, or does the responsibility that this post carries require more than a training in law?

It has been said that it is parliamentary rather than legal experience which is the first requirement of a Speaker. That does not mean that somebody with no parliamentary experience cannot occupy the post of Speaker. What is important is that he should act impartially and treat members of the government as well as the opposition in the same manner and without any bias.

* The ongoing ‘malaise’ inside the National Assembly is attributed to the manner in which the Speaker conducts the proceedings of the Assembly. Isn’t that unfair given that the Speaker might be going by the book?

 The Speaker exercises his power according to the Standing Orders that confer on him wide powers to give rulings which can virtually never be challenged at a sitting of the assembly. Whenever a member wants to raise a point of order, he is told to shut up literally or is threatened by the sanction of being expelled or named.

One may wonder whether this doesn’t amount to a stifling of the opposition so that the government can have its way. It is as if we are living in a one-party state although we boast of having a parliamentary democracy at work here.

One may go by the book, but parliamentary practices that have evolved over the centuries and are embodied in the ‘bible’ of parliamentarians – Erskine May -, are also pertinent in deciding on procedures and rulings in the Westminster model of parliament.

For all we know, the Speaker may name all members of the Opposition followed by a suspension for the remainder of the session of Parliament. Parliament would thus function without an opposition, but will that be constitutional?

* Standing Order (21) 4. states as follows: “When a question has been refused or amended, and the Member concerned wishes to make representations to the Speaker on the matter, these must be made privately to the Speaker and not raised by way of a point of order in the Assembly.” That’s the rule. How could the Speaker have been wrong when his decision to remove Hon Assirvaden’s question was contested by the latter in the Assembly?

 The power to disallow a question is contained in Standing Order 27 which reads:

The Speaker shall decide whether a question is or is not admissible under these Orders and may disallow any question when, in his or her opinion, it is an abuse of the right of questioning or calculated to obstruct or affect prejudicially the proceedings of the Assembly and shall disallow any question if it infringes any of these Orders.

 It must be shown that the question amounts to an abuse of the right of questioning or calculated to obstruct or affect prejudicially the proceedings of the Assembly. No Speaker cannot just disallow a question just to please the powers that be. The exercise of such a power must be done judiciously — not arbitrarily.

If Hon Assirvaden was told in private that his question would not be allowed, then he was not justified to raise the issue on a point of order. However, a member may feel that the disallowance is simply not justified. What was Hon Assirvaden asking? Whether an ambassador of Mauritius was declared persona non grata in an Arab State? Is not that a matter of utmost public interest? On what ground was the question disallowed? The Speaker could have given a more convincing explanation rather than saying that what had motivated his decision was to avoid offending the Saudi authorities.

* What about the naming of Arvin Boolell, Paul Berenger and Rajesh Bhagwan? Was the sanction by the Speaker disproportionate with any offence that might have been committed by any of the former?

Naming is the ultimate sanction that can be used against a member of parliament. The suspension, as wished by the Prime Minister in his political wisdom, is that the sanction should be for the whole session of parliament. Was it disproportionate? Views may differ, but the decision to suspend for such an indefinite period is purely subjective. No parliament based on the Westminster model of parliamentary democracy would suspend a member arbitrarily for such a long time.

* Are the Standing Orders a law unto themselves?

The Standing Orders are adopted by Parliament, but they do not have the force of law as they do not constitute an Act of Parliament or regulations.

Section 48 of the Constitution states:

“Subject to this Constitution, the Assembly may regulate its own procedure and may, in particular, make rules for the orderly conduct of its own proceedings.”

 This means that the Standing Orders cannot be incompatible with the Constitution. It also stands to reason that the Standing Orders cannot be used to trample on democratic principles like frustrating a member of the Opposition from fulfilling his duties.

The question that arises is whether, by the Speaker’s rulings and decision to name members of the Opposition, the business of the House is being so conducted as to prevent members from sitting in parliament and fulfil their duties?

* Is the exercise of his powers by the Speaker subject to the Constitution? 

 Yes. The Supreme Court has ruled on this topic in the case of Attorney General against Navin Ramgoolam in 1993. This is what late Justice Lallah said:

“where Parliament exercises sovereign powers under the Constitution and the Courts are empowered to exercise a particular jurisdiction which itself requires an enquiry into the exercise of those powers by Parliament, then the jurisdiction of the Courts must be exercised to the appropriate extent in order to enable it to determine the particular question that is before it. It would be misleading, in those circumstances, to invoke the sovereignty of the National Assembly which would have the effect of paralysing the effective exercise of the constitutional jurisdiction of the Court.”

* The Opposition is apparently considering two options in the wake of the suspension of the three MPs: rather than tendering unreserved apologies to the House, provoke by-elections with a view to seeking a popular vote to censure the Speaker, or take up the matter to the Supreme Court. Which could be the best option?

To resign would be stupid; it would be playing in the hands of the government and the Speaker. The best option is to go to Court and argue that the decision to name the three parliamentarians had been made on the flimsiest of reasons and that an indefinite suspension is simply undemocratic.

* Would our Supreme Court overstep the bounds set on it by the Constitution or will it most likely stick to the doctrine of parliamentary supremacy?

In the case of Utchanah against Berenger in 1998, the Supreme Court stated:

“We are of the view that Parliament may hide neither behind the cloak of privilege or immunity nor behind an ouster of jurisdiction in order to flout the Constitution which is the very essence of its existence. This Court does possess jurisdiction to determine whether Parliament is acting within the boundaries set by the Constitution.”

On occasions arising, the Supreme Court will intervene if the actions of the Speaker go against the Constitution.

* Wouldn’t it be in the public interest for the Court to intervene in certain circumstances to overrule Parliament and protect the Constitution, and in the process develop a more positive jurisprudence?

The Court has intervened, albeit rarely, in the internal workings of parliament. What is at stake is not whether it is in the public interest for the Court to intervene. What is at stake is whether a member of the assembly who feels that he is wrongly and unjustly deprived of his constitutional right from attending parliament can be left without any remedy.

Judge lam Shan Leen gave the answer in the case of Honourable P. R. Bérenger v Sir R. Jeewoolall in April 1999. According to the judge when a member of the assembly is being deprived of his right to attend the sitting of the assembly and to perform duties which are personal to him as set out in the Standing Order and

“…as the Standing Order is silent as to the procedure obtainable in the Assembly for that member to seek redress of a sanction manifestly wrongly taken against him and in the present case from attending the sitting of the Assembly, I do not believe that the right of that member to seek redress from the Supreme Court could be curtailed by the respondent invoking the privilege of the House to deal sovereignly with its internal business.

“What we are looking at is the decision making process of the Assembly under the supervision of its chairman, more especially when that decision infringes on the constitutional right of a member.”

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* Published in print edition on 9 April 2021