Parliament: Can Phokeer be challenged in court over Boolell, Bérenger and Bhagwan’s suspensions?

4 avril 2021, 22:30


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Parliament: Can Phokeer be challenged in court over Boolell, Bérenger and Bhagwan’s suspensions?

The ex-Leader of the Opposition and head of the Labour Party contingent in the National Assembly has announced that he intends to apologise to lift the indefinite suspension Speaker Sooroojdev Phokeer put on during last week’s sitting. Also suspended were the MMM leader Paul Bérenger and its secretary general Rajesh Bhagwan. Phokeer’s heavyhanded move is just an escalation in his rocky relationship with the parliamentary opposition. The question is, can the opposition turn to the courts to restrain Phokeer?

Phokeer and the MSM

Characterising Speaker Sooroojdev Phokeer, Ram Seegobin of Lalit tells l’express; “I don’t think he understands what is the role of the speaker, he does not seem to have the finesse of a Sir Harilal Vaghjee, who would joke to relieve tension in parliament or the heavy presence of a Sir Ramesh Jeewoolall who would not be affected by what was going on around him. He acts like somebody still in the MSM.” Which of course is not surprising given the long relation that Phokeer has had with the ruling party. The son of a former civil servant at the Ministry of Works and the seventh of nine children, Phokeer started off teaching economics at Bhujoharry College in Port Louis. “While there he helped set up a union at the school in the mid-1970s, which at the time was a very risky thing to do,” says Seegobin. As a result, Phokeer, along with 33 other school staff lost their jobs.

In 1983, Phokeer gravitated to the MSM led at the time by Sir Anerood Jugnauth and won a seat as a candidate of the MMM-MSM alliance in the 1991 elections in constituency No 14, alongside his running-mate Alan Ganoo (a former speaker himself, who today raises points of order in parliament to buttress Phokeer’s offensives against the opposition). He was given another ticket in the 1995 elections, this time in constituency No 15, but lost as the MSM suffered a 60-0 wipe out. When the MSM came to power again in 2000 as part of another MMM-MSM alliance, Phokeer was sent as ambassador to Egypt. But after the prime ministership passed to MMM leader Paul Bérenger, Phokeer was recalled to 2004 facing allegations of misconduct and was appointed a special advisor at the Ministry of Agriculture instead.

The exact circumstances of Phokeer’s recall back to Mauritius have never been made public. In 2005, with the MSM finding itself once again out of power, Phokeer left for London to study law at the University of Huddersfield. In the meantime, he came back to Mauritius on occasion to serve as a campaign manager for Anerood Jugnauth. When the elder Jugnauth became prime minister again in 2014, Phokeer was again made ambassador, this time to the United States. Subsequently, he became embroiled in controversy once again, this time for allegedly demanding that a staff member at the embassy, Giovanni Merle, cut off his dreadlocks. Merle was fired in 2018. For the election in 2019, Phokeer returned to Mauritius to work on the electoral campaign of Pravind Jugnauth, particularly in constituencies Nos 8 and 10, and was then made speaker.

His nomination, however was contested by the MMM’s Paul Bérenger, the same man who as prime minister had recalled Phokeer from Cairo. Phokeer was not the first speaker to have his nomination contested. In 1990, Gaetan Duval went to court to contest the nomination of Iswurdeo Seetaram. The difference was that what Duval was contesting was the manner in which Seetaram’s predecessor Ajay Daby was removed as speaker by the then-government for what it perceived to be his lack of support for their constitutional push to make Mauritius a republic, and the fact that Seetaram was elected speaker at the same sitting that got rid of Daby. Unlike the case of Seetaram, the contesting of Phokeer’s nomination was not part of a larger episode of high politics. It all had to do with Phokeer himself.

The offensive against the opposition

“The role of a speaker is to protect the minority in parliament from being overwhelmed by the majority and keeping parliament as a watchdog on the executive,” says Seegobin. Former speaker of the National Assembly Kailash Purryag tells l’express, “the speaker is an arbitrator to protect the parliamentary minority, but this is not what we are seeing now”. Referring to Phokeer’s suspension of Boolell, Bérenger and Bhagwan from parliament until they apologize, Purryag offers, “I am taken aback by what has happened, it’s very unfortunate for our democracy, you cannot prevent or harass MPs from asking questions.”

From the bad start with the opposition over his nomination, Phokeer’s speakership has gone on to be marked by relying on parliamentary rules to undertake a series of escalating measures against the parliamentary opposition parties, of which the current suspension was just the latest episode. Between 20 March and 5 May last year, Phokeer postponed sittings of the National Assembly. Following the announcement of the budget last year that introduced a new pension system (currently being challenged within the courts) the speaker did not allow the then-Leader of the Opposition Arvin Boolell to ask a private notice question on what these pensions reforms entailed. Before reversing himself and allowing the question a week later. During debates at the committee stage of last year’s budget, Phokeer took the unprecedented step of expelling the whole of the opposition for what was intended to be their brief boycott of the speech of then deputy prime minister Ivan Collendavelloo, implicated in the St. Louis affair for which he was forced to eventually step down from his post. On that day, on 16 June 2020, the whole debate of the committee stage lasted just 17 minutes with not a single question from government backbenchers, the only people left in parliament. That was followed by Phokeer not allowing the Leader of the Opposition access to his official office on Saturdays or using the committee room to hold press conferences, both decisions going against established practice.

These decisions, along with Phokeer’s acquiescence in allowing the government to ride roughshod over the opposition and serially expelling and suspending opposition MPs resulted in the quickest motion of no-confidence against a speaker to appear in Mauritian parliamentary history. There have been motions of no confidence against speakers in the past – in 1963 Jules Koenig brought one against Sir Harilal Vaghjee, in 1982 by Gaetan Duval against Alan Ganoo, in 1985 by Cassam Uteem against Ajay Daby, in 1990 by Sir Anerood Jugnauth against Ajay Daby, in 1995 by Navin Ramgoolam against Iswurdeo Seetaram and in 2017 by Shakeel Mohamed against Maya Hanoomanjee. But none had appeared as quickly as that against Phokeer, a mere seven months after he became speaker.

What is interesting to note is that when the motion against Phokeer was called for a vote on 11 August 2020, it almost passed! Calling for the vote, the deputy speaker Zahid Nazurally said, “The question is that the Assembly has no confidence in Mr Speaker. Those in favour say ‘Aye’, those against say ‘no’. The Ayes have it.” Realizing what had happened, Nazurally quickly said it was a slip of the tongue stating, “it is because there is too much noise in this house and nobody is listening”. He asked parliamentarians to vote again, this time by raising their hands. Even the motion against Phokeer had become symptomatic of slipping standards. Emboldened further, in November 2020 Phokeer went on to ‘sub-edit’ a private notice question by Arvin Boolell asking whether or not there was an investigation against the prime minister Pravind Jugnauth for allegedly breaking the Financial Intelligence and AntiMoney Laundering Act by making payments in 2002 to the Bel-Air Sugar Estate above legal limits for cash payments in connection with the Angus Road affair. In March this year, Phokeer was officially awarded the country’s highest official distinction, a GCSK.

Can Phokeer be taken to court?

In a social media post announcing his intention to lift his suspension by apologizing to Phokeer, Arvin Boolell nonetheless maintained that Phokeer’s sanction was “disproportionate and may be subject to constitutional challenge”. With Bérenger and Bhagwan still to present their own apologies to lift their suspensions, the question is: can they ask the courts to step in and challenge Phokeer’s suspension order?

The question of how constitutional is it to suspend a member was first raised by late justice Lallah in the case of Gaetan Duval in 1990 when he said in his judgement, “I wonder whether Sir Gaetan would consider disciplinary measures, other than those which are obviously outrageous, suspending a member for a certain number of sittings unconstitutional? Would that be a breach of section 31 (of the constitution)? This is a further reason why I think that the matter is not free from doubt.” Back then, suspensions and expulsions of MPs were not as commonplace as they are today. And the courts themselves were working their way through this question of how much leeway they actually had in stepping into parliamentary affairs.

Within the judicial history of Mauritius, two cases stand out. The first being the one in 1993 when the government organized an early morning session on 29 January at 9 am to introduce an urgent motion to declare the seat of Navin Ramgoolam vacant. The matter made its way to the Supreme Court. Branding the attempt a ‘colourable device’, the Supreme Court sided with Ramgoolam. In this case, the court was acting according to section 37 of the constitution which specifically mandated that parliament turn to the court to declare a seat at the National Assembly to be vacant if any MP is absent from it for three months without the speaker’s leave. “The case of Ramgoolam was a different matter, the constitution stated that Supreme Court is the only body that can declare a parliamentary seat vacant, the court was specifically empowered by the constitution to intervene,” explains Purryag.

The second case was that of Paul Bérenger in 1999. The only other example of an indefinite suspension of a parliamentarian before the cur- rent example of Boolell, Bérenger and Bhagwan. Bérenger went to court arguing that Sir Ramesh Jeewoolall, the speaker at the time, had not followed parliamentary rules by indefinitely suspending him without any such motion being presented in parliament. Tape recordings of the assembly told one story, but the official parliamentary Hansard told another. First Bérenger turned to a judge in chambers, in this case former Supreme Court Judge Paul Lam Shang Leen, for an injunction slapping down the suspension until the court decided whether Jeewoolall’s suspension of Bérenger could be allowed to stand or not. Lam Shang Leen approved Bérenger’s request.

However, when the full bench of the Supreme Court heard the case, they concluded that the court could not get involved since section 48 of the constitution and the National Assembly (Privileges, Immunities and Powers) Act specifically empowers parliament to conduct its own affairs, leaving the court with no authority to intervene, unless, the constitution itself was being breached. Unlike in the case of Ramgoolam, there was no constitutional article specifically allowing the court to intervene to lift Bérenger’s suspension.

The MMM leader ultimately lost his case. “Paul Lam Shang Leen said yes the courts can intervene, but the full bench of the Supreme Court overruled that. This is now the standing precedent. I do not see a judge departing from the decision of the full bench unless there is clear breach of the constitution,” says former supreme court judge Vinod Boolell. “It’s rare that a court will intervene in a decision of the speaker unless what has been done is against the principles of the constitution,” he adds, “the speaker is the overlord in parliament, he can rely on standing orders, he interprets them and he can take sanctions. I would add however that when the Speaker exercises his power to preside on the conduct of the business of parliament, he stands guided by the Standing Orders as well as practices and conventions. Though the Speaker is sovereign in so far as the internal working of parliament is concerned, there ought to be a legal limit to his power when, and, if that power is abused to such an extent as to frustrate the work of parliamentarians of the opposition and makes a mockery of parliamentary democracy.”

Even if the three suspended MPs choose to challenge the decision of the speaker to name them followed by an indefinite suspension, “the question remains how long will the Supreme Court take to determine the case. With a case that may take years can they risk staying out of parliament over a long period?” Boolell asks. In the case of Bérenger, the matter was ultimately resolved after the then-prime minister Navin Ramgoolam himself presented a motion to allow Bérenger to re-enter parliament, says Purryag. In other words, going to court to challenge Phokeer is a long shot.

Can the government artificially increase its majority by suspending the opposition?

The suspension of Boolell, Bérenger and Bhagwan is not just the product of Phokeer’s management of parliament, but also highlights a problem within the rules of parliament itself. Standing Order 49 outlines the power of the speaker to ‘name’ and suspend parliamentarians. “There is no maximum limit to how long such a suspension can be, a speaker can ‘name’ a parliamentarian for suspension, but the motion for suspension which also determines the length of such a suspension comes from the leader of the house,” explains Boolell.

In other words, it’s up to the speaker to decide whether or not to suspend a parliamentarian, but up to the prime minister to come up with a motion and decide for how long. “The length of such a suspension is a purely political decision, does it not undermine democracy?” asks Boolell. This, he points out, is quite different from Standing Order 44 (2) in the UK’s House of Commons which clearly sets limits of suspensions. This leads to another question: if politics decides for how long an opposition MP can be suspended, can a government artificially increase its parliamentary majority by suspending enough opposition MPs? To reach 3/4ths perhaps, enough to make constitutional changes? To answer this question we turn to Milan Meetarbhan, who has authored a commentary on the Mauritian constitution. “If parliamentarians resign, then yes the total number of parliamentarians goes down, so does the number of votes needed to get a three-quarters majority, which will now be calculated counting parliamentarians left in parliament,” Meetarbhan points out. But in the case of suspensions it’s another matter entirely. “A parliamentarian that has been suspended is still a member of the National Assembly and his or her seat cannot be considered to be vacant, my view is that so long as the seat has not been declared vacant, or a parliamentarian has not resigned, a three-fourths majority is still calculated by counting all parliamentarians, whether they are under suspension or not,” concludes Meetarbhan.

Phokeer’s record of suspensions and expulsions of opposition MPs

28 February 2020: Shakeel Mohamed expelled.
28 February 2020: Arvin Boolell suspended.
5 May 2020: Paul Bérenger expelled.
11 June 2020: Rajesh Bhagwan expelled.
15 June 2020: Arvin Boolell ordered out, then allowed to stay following an apology.
16 June 2020: The whole opposition expelled following their boycott of Ivan Collendavelloo’s speech.
30 June 2020: Paul Bérenger expelled.
28 July 2020: Patrick Assirvaden expelled.
3 November 2020: Rajesh Bhagwan suspended for two sittings.
10 November 2020: Arvin Boolell expelled.
17 November 2020: Shakeel Mohamed suspended for four sittings.
17 November 2020: Patrick Assirvaden expelled.
24 November 2020: Arvin Boolell suspended for two sittings.
24 November 2020: Patrice Armance expelled.
30 March 2021: Arvin Boolell, Paul Bérenger and Rajesh Bhagwan suspended pending an apology.
30 March 2021: Patrick Assirvaden expelled.