How the cases of Boolell and Mohamed vs. Phokeer are raising all-new questions...
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How the cases of Boolell and Mohamed vs. Phokeer are raising all-new questions...
Labour party MPs Arvin Boolell and Shakeel Mohamed have legally challenged the speaker Sooroojdev Phokeer at the Supreme Court over their previous suspensions from the National Assembly. Both have argued that the speaker acted unconstitutionally in the way he suspended them. So, what has happened in these cases? Why is Phokeer’s argument in court an interesting one?
The difference between the two MPs’ petitions
Labour Party members of parliament (MP) Arvin Boolell and Shakeel Mohamed have lodged separate legal cases against the speaker of the National Assembly, Sooroojdev Phokeer, challenging previous suspensions from parliament handed down to both. The two cases are still languishing at the Supreme Court: “It is extremely ridiculous and undemocratic that a matter lodged years ago and of constitutional importance is dragging on for so long,” Mohamed tells l’express, “the lawyers for the speaker are just bringing in new issues just to drag matters on.”
The issues are in fact the product of the differences between the cases that Boolell and Mohamed have brought to the Supreme Court. Although both cases accuse Phokeer of acting unconstitutionally, just who each case is directed against is slightly different; in Boolell’s case, it is directed against both speaker Phokeer and Prime Minister (PM) Pravind Jugnauth, whose ruling MSM party commands a majority in the National Assembly, while Mohamed’s case is primarily directed against Phokeer himself. What this means is that, in court, Phokeer’s lawyers have used different strategies to fight both cases. For instance, earlier this month, they have demanded that the part of Mohamed’s case accusing the speaker of suspending him in an effort to protect the PM who was facing a Private Notice Question (PNQ) about the ‘Angus Road’ case from being taken out because Mohamed’s case does not include the PM.
The legal stratagem would seem familiar: on November 19, 2021, the Supreme Court excised parts of Labour Party leader Navin Ramgoolam’s now-withdrawn election petition questioning the 2019 election results in constituency No.10 relating to how the PM had used the Mauritius Broadcasting Corporation (MBC) as a propaganda vehicle because neither Pravind Jugnauth nor the MBC were included as parts of the case. In Ramgoolam’s petition, the court argued that it was impossible to add them in the case then since the Representation of People’s Act (RoPA) prohibited adding new elements to the petition after the mandatory 21-day deadline to lodge a petition after an election. This is not an issue in Mohamed’s case, and it remains to be seen whether the courts will chuck out the latter’s argument against the PM or choose to add him into the case.
The tactic has been different in Boolell’s case, where Phokeer’s lawyers have demanded that the court chuck out parts of his case detailing their client’s political past with the MSM. “In the case of Boolell we made the speaker’s political history an issue and the other side came up with a motion to take that part out of the case. We included that in the case to show that he was not independent,” explains Rajesh Unnuth, the lawyer representing both Mohamed and Boolell in their respective cases against Phokeer.
The stand of the Supreme Court
Another argument that Phokeer’s legal defence has produced in Mohamed’s case is that since it was the National Assembly and not Phokeer that suspended him, the court should chuck the case out. By introducing this argument, Phokeer’s legal strategy seems to be turning an already-uphill task for Mohamed’s lawyers into an impossibility by appealing to the Mauritian court’s traditional antipathy to interfering in parliament’s business. “Under the doctrine of separation of powers, the courts act as a check on other institutions, whether through specific provisions of the constitution itself for some or through exercising a general supervisory function in others,” says constitutional lawyer Milan Meetarbhan, “when it comes to parliament, the Supreme Court can declare a piece of legislation unconstitutional, but to what extent does it have the power in respect to proceedings in parliament? We tend to forget that unlike the UK, which has an unwritten Constitution and where parliament is supreme, here in Mauritius we have a written Constitution where it is the Constitution, and not parliament, that is supreme.”
The limits that the Supreme Court has put up for itself when it comes to parliament has a rich history. In 1973, there was the case of Lincoln Henri who tried to get the court to prevent the governor general from signing off on the then-legislative assembly’s attempt to change the Constitution to push back by-elections for four vacancies that arose in parliament between July 1972 and January 1973. The court refused to argue. “It is for the Assembly and the Assembly alone, to decide when it will sit, and what business it will discuss. If a Court of law sought to prevent, or even to delay, the introduction of a bill, it would not be exercising a judicial power, but usurping a legislative function.”.
Then in the Keetarut case in 1992 where the court was asked to prohibit the then-PM from coming up with changes to the Constitution and the RoPA, the court declined by saying, “We are not going to usurp the National Assembly’s powers either by preventing it from considering those bills”. The judicial system in Mauritius has interpreted its powers to mean that it can only interfere with what happens in parliament when the Constitution is being seen as being flouted: as happened in the case of Navin Ramgoolam in 1993 when the government and then-speaker attempted to declare his seat vacant, which the Supreme Court slapped down.
However, in that case, the Supreme Court relied on section 37 of the Constitution that specifically mandates it to step in when it comes to declaring a seat to be vacant. “Normally, the courts are very cautious and will intrude in parliamentary business only when a breach of the Constitution is involved. I think this has been an overcautious view, even when compared to the judiciary in other Commonwealth states” says Rajen Narsinghen, senior law lecturer at the University of Mauritius.
The problems with such an approach are obvious: “If the only way to challenge the decision of a speaker is to show a breach of the Constitution, then this would mean that the only way to sanction the speaker for any other irrational or wrongful act would be a no-confidence motion, which in the context of Mauritius means that the majority in parliament will always back him,” says Meetarbhan. Coming specifically to suspensions handed down by speakers, 1999 saw Paul Bérenger’s case against then-speaker Sir Ramesh Jeewoolall. In that case, Bérenger argued that his suspension should be lifted by the courts because the speaker had not followed proper parliamentary procedure in suspending him. The courts declined to do so arguing that the court could not get involved unless the Constitution was being breached. In Mohamed’s and Boolell’s cases, this history makes it exceptionally difficult for them to succeed because there is no legal precedent in Mauritian history of the courts overturning an MP’s suspension by the speaker.
A first-time argument
The courts limiting themselves to looking at constitutional breaches only – and the lack of success in previous cases – such as Bérenger’s in 1999 – is why both Boolell and Mohamed couched their own cases as constitutional ones; and not merely ones against the speaker’s decision to suspend them. In Boolell’s case, this has already saved it from another argument from Phokeer’s lawyers: since Boolell had already resumed his seat in parliament on November 19, 2021, there was no more case to contest. However, in a decision on May 10, 2022, the court refused that argument adding that Boolell’s case “is not one seeking an order that the decision of the defendants to ‘order him out’, name him and suspend him from sitting in the National Assembly be quashed… he is in fact seeking constitutional redress for alleged breached of his constitutional rights by invoking the constitutional jurisdiction of the Supreme Court as guardian of the Constitution”. At the moment, the Supreme Court is looking into whether Phokeer’s suspending Boolell breached sections 3, 12 and 16 of the Constitution.
Coming to Mohamed’s case, the argument that it was not Phokeer but the National Assembly that suspended him is quite a novel argument in Mauritian judicial history. In past cases where MPs have contested suspensions handed down by speakers, such cases have always been entered against speakers (as was Bérenger’s case the 1999 for example). “In all those cases the Supreme Court could have raised that issue but did not,” argued Unnuth. And Narsinghen concurs: “this is a new sort of argument and never raised before in cases like this”. According to Standing Order 49 of the National Assembly – which outlines the rules and procedure of parliament – it is the speaker that triggers a suspension by ‘naming’ an MP: “naming is done by the speaker and once named, the motion then passes onto the executive,” explains Narsinghen, “from there it is the prime minister that presents a motion for suspension and determines the length of a suspension.” The point, Mohamed adds, “is that the National Assembly does not come up with a motion by itself, the ‘naming’ that starts it all is done by the speaker”. The point of all this, says Unnuth, “is to get the Supreme Court to tell us once and for all what exactly is the role of the speaker in all this, is he just a rubberstamp for the government? We want the highest local court to give its opinion on this”.
By raising this distinction between the speaker and the National Assembly when it comes to suspensions, in the case of Mohamed, the court is being asked for the first time to answer the question: “who is responsible for suspending MPs? Is it the majority that votes for the motion to suspend an MP?” asks Meetarbhan – an implication that carries uncomfortable overtones of majoritarianism within parliament and the role of the speaker in combating, or abetting, it – “or is it the speaker himself who triggers the vote. Who should be held responsible for that?”
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