The stand of Paul Bérenger, who is still the leader of the Mouvement militant mauricien (MMM) and who is still a member of the National Assembly, is posing a legal and constitutional conundrum . T h e conundrum stems from the unusual fact that Paul Bérenger who has resigned as Deputy Prime Minister and, therefore from government whilst his party is still in government, now wants to sit as an independent member. The seating arrangement of parliamentarians will have to be modified to accommodate him and his status must be clarified.

The seating arrangement in the National Assembly is as follows. Government members sit to the right of the Speaker, while opposition members sit to the left. The Prime Minister sits on the front bench, right side, with Cabinet members, while the Leader of the Opposition sits on the front bench, left side. What about independent members, that is, those members who are not part of the main government or opposition parties? How are they assigned seats? According to general views: “Independent members of parliament are generally assigned their roles, seats, and committee positions based on rules that distinguish them from recognized political parties, often requiring them to act as individual representatives. Their placement in the parliamentary chamber is usually decided by the Speaker, while their committee assignments are often subject to the discretion of parliamentary leadership.”

Paul Bérenger and two of his party members are reluctant to sit on the government benches. The question raises constitutional implications. The crux of the debate is whether a member of the MMM, a party still in government, can either sit with the Opposition or as an independent member. If the supporters, members of the MMM in the Assemblée des délégués, have voted for the MMM to stay in government, the logical consequence is that Paul Berenger and his two colleagues must sit on the government benches as members of the MMM. If that does not happen, the three MMM members may be marginalised by their party.

Paul Bérenger and his two colleagues have on at least three occasions declined to attend Parliament. Constant absences from Parliament without good cause can result in their seats being declared vacant by virtue of section 35(1)(e) of the Constitution that reads: “Where, without leave of the Speaker (or, where the office of Speaker is vacant or he is for any reason unable to perform the functions of his office, the Deputy Speaker) previously obtained, he is absent from the sittings of the Assembly for a continuous period of three months during any session for any reason other than his being in lawful custody in Mauritius.” We have not yet reached that stage but it is point that must be borne in mind.

According to the United Kingdom and Commonwealth parliamentary practice, “a former minister who quits the party whip but remains a member of the Parliament (MP) can continue to sit in the House, generally positioned in the non-aligned area or the backbenches, acting as an independent, or in some contexts, sitting with opposition groups.” The view has also been expressed that “While constitutionally allowed to remain as an independent, the former minister is typically marginalized politically and cannot sit as part of the government, as an MP cannot be simultaneously in the government party and an independent, oppositionaligned member, according to standard Commonwealth sitting arrangements”.

According to ‘Erskine May’: Parliamentary Practice (The Guide to Parliamentary Practice and Procedure), “seats in the House are held by individuals, and if an MP leaves their party, they do not automatically trigger a by-election, though they often lose the party label at the next election.” Paul Bérenger has not officially lost the MMM party label. But has he, de facto, lost it by his stand?

Paul Bérenger has two options. Either he stays as a member of the MMM and sits as a backbencher, or resigns from the MMM and sits as an independent member, leaving it to the Speaker to make the appropriate seating arrangements.