As the National Assembly heads into a three-and-a-half-month recess, with a string of suspensions of opposition MPs continuing, it looks like parliament is weaker than ever before when it comes to keeping the government in check. Why?

1. Abuse of power ?

As the National Assembly heads into a recess, defying opposition demands to keep it running in the midst of the Covid-19 pandemic and its economic fallout, a string of suspensions of opposition parliamentarians continuing and the government rushing through controversial legislation with long-term consequences, such as the IBA (amendment) bill and the Offshore Petroleum bill, it seems that parliament is weaker than ever before in keeping a check on the government – the executive.

In some ways, the Mauritian parliament seems to be following a global trend. On December 9, the UNaffiliated Inter-Parliamentary Union released a report stating that incidents of parliamentarians – particularly those from the opposition – having their rights trampled on is at an all-time high globally with 552 MPs across 42 countries reporting abuse of their rights. And unjustified suspensions from parliament being one of the most common tactics used against them. This is particularly pertinent for Mauritius whose own parliament has witnessed a raft of suspensions against opposition MPs since 2019, some of which are now currently being contested at the Supreme Court.

While a lot of critics put the blame squarely on speaker Sooroojdev Phokeer’s handling of the National Assembly, the fact is that he is only digging the hole deeper; the Mauritian parliament always had a problem keeping governments in check. The difference now is that it is getting much worse and more out in the open.

2. Supremacy of the executive

One big reason for the National Assembly’s inability to rein in the government is that so many of its own members are actually in government. This is a product of the traditional Mauritian brand of coalition politics where lots of politicians across different parties and communities are given formal posts within government. Over time this has become a growing problem. When Mauritius became independent in 1968, its constitution originally envisaged an executive made up of a prime minister leading a cabinet of 14 ministers and five parliamentary secretaries to help ministers. But when the Labour Party and the PMSD formed their coalition in 1969, with the need for more posts to accommodate former political rivals in government, the constitution was amended to increase the number of ministers to 20, assisted by 10 parliamentary secretaries. In a parliament of 70 MPs, this meant that nearly half of them had a position in government.

The MMM government in 1982 made its own series of constitutional amendments, one of which was to reduce the number of ministers and abolish the post of parliamentary secretary. However, after the 1987 elections, the MSM-led government created the post of private parliamentary secretary (PPS). The move smacked of a return to the past when government benches in parliament were dominated by MPs given posts within government in some way and a reversal of the 1982 abolishment of parliamentary secretaries.

The logic for the move was threefold: more executive positions in parliament meant that more coalition partners and turncoats from other parties could be accommodated within a government; a PPS could act as a government representative in opposition-dominated constituencies and, more importantly, they would not question government in parliament.

No real backbenchers

When the post was established, each new PPS would get a letter stating that as in other democracies, “you will be expected to support Government’s policy within and outside the Assembly while you hold the post of Private Parliamentary Secretary”. Today, the proportion of parliament made up of government figures is worse: 21 cabinet members and 10 PPS. “This is a major issue with governments being generous with their MPs in terms of ministerial positions and PPS nominations,” explains constitutional lawyer Milan Meetarbhan, “it prevents them from acting as real backbenchers.” It also helps explain why MPs from a ruling coalition challenging their own government are so rare. Most of them are in government.

This is why the divide between ruling and opposition benches is so stark. “You need 35 MPs to have a majority in parliament, out of that if you have 24 ministers and 10 PPS, that’s almost the entire government benches in the executive, that’s why you can never have a situation like in the UK, where Boris Johnson’s government is facing trouble from his own backbenchers,” says Ram Seegobin of Lalit. With so much of parliament actually in the executive, governments exercise total domination within parliament, with ruling party parliamentarians-cum-government officials marching lockstep with the government. “You end up with a parliament that’s little more than a debating club,” he adds. This is why his party has long demanded expanding the total number of MPS within the National Assembly while at the same time trimming down the number of ministers in the cabinet and setting up a system of permanent parliamentary committees to scrutinize things like nominations and controversial, far-reaching legislation. In other words, going back to what the MMM tried to do in 1982 to reverse the domineering presence of the executive within parliament, before it started expanding it again after 1987.

Upper house of parliament

Not everyone agrees with an enlarged parliament, however. “Parliamentarians are elected by the people and the government will always have a majority and the opposition will be in the minority,” says Kailash Purryag, former President and former speaker of the National Assembly, “if you want this kind of oversight, then we should instead have a debate about creating an upper house of parliament. This was rejected in the Lancaster House talks in 1965 with the thinking that as a poor country, Mauritius could not afford a second chamber of parliament, but maybe it needs to be studied now like what how would be its members, how would they be appointed and what kind of powers of oversight would it have?”

Whatever the answer to resolve this may be, having a parliament dominated by a majority where most of its members are in government is a problem, given that unlike in the UK since 2011, dates of general elections are not fixed, with the government able to call for snap elections at any time before the 5-year parliamentary term runs out. “Deciding on when to dissolve a parliament, no executive should have that kind of power,” argues Seegobin.

3. Public funds spending

The National Assembly also seems to become less relevant when it comes to supervising government spending of public money. In this, the Mauritian parliament started losing this battle quite early on. In 1981, for instance, laws were passed allowing the finance ministry sole discretion when it came to borrowing money on behalf of the government from institutions like the IMF, the World Bank, multilateral lenders or other governments without having to go through parliament. The principle of allowing the government to conduct its finances outside of parliamentary scrutiny, once conceded, has only gotten worse with time. In the 1997-1998 budget, very soon a privatization fund appeared to handle the proceeds of a looming sale of a 40 percent stake of Mauritius Telecom (eventually concluded in 2000) as well as the government divesting itself from other state assets.

Seegobin took the finance ministry to the Supreme Court to declare the move unconstitutional, arguing that allowing governments to set up such a fund would only further whittle down parliament’s ability to oversee government finances. In January 1998, the Supreme Court declined to intervene and dismissed the case. “We saw it as the beginning of a slippery slope allowing public money to be kept outside parliamentary oversight, and we could tell where this would eventually lead,” says Seegobin. Although the privatization fund soon disappeared, the fact that the courts refused to declare such a move unconstitutional kept the door open for this tactic. As will be seen later. The product of all this is that when it comes to looking at government finances, pretty much the only time parliament gets a real look-in is during the annual budget debates.

Although technically budget debates can go on for as long as 30 days, in practice they usually last between a week or two of very intense, daily debates. A 2016 report of the African Forum and Network on Debt and Development looking at Mauritius’ debt management warned that, “the limited involvement of parliament weakens the accountability of the budgetary process and prevents an assessment of fiscal strategies to contain public indebtedness”.

Powerless accounts committee

The only other recourse that parliament has to scrutinize government spending is its Public Accounts Committee (PAC) made up of nine MPs but traditionally headed by an opposition MP. Although it has the power to question officials and demand documents to further look into financial dealings unearthed by the director of audit, in practice it can do little. It has no secretariat of its own, it cannot punish financial wrongdoing, its reports are not debated in parliament and there is no way to follow up on its recommendations. “It has not been very effective,” insists Meetarbhan.

And nowhere is this inadequacy shown up as much as in the latest procurement scandal coming out of the health ministry, this time over allegations that it bought Molnupiravir tablets – touted to reduce hospitalization rates amongst Covid-19 patients – at inflated prices. “We see the opposition demanding a select committee of parliament to look into that, why cannot the PAC do that?” Meetarbhan asks, “if there are weaknesses stopping the PAC from working properly, why not empower it to demand answers from ministers and permanent secretaries at ministries?”

Special purpose vehicles

The old tactics of by-passing parliament through government borrowing and using special funds has only gotten worse. Recent years have seen a whole raft of such attempts to shield public finances from parliament: the government guaranteeing loans taken by bodies such as Mauritius Telecom for the Safe City Project; special purpose vehicles set up for infrastructure spending and public lending such as for the Metro Express project, projects of the Central Electricity Board or the Mauritius Investment Corporation to channel public funds to lend to troubled private companies; or off-budget funds such as the National Resilience Fund, the National Environment Fund or the Covid-19 Projects Development Fund. “They are bypassing the whole parliamentary system. This is just taking advantage of loopholes,” laments Purryag.

This tendency earned the Mauritian government a rare rebuke from the World Bank in April this year when it warned in a report that, “the reliance on off-budget vehicles and the Central Bank for fiscal activity undermines the effectiveness of the budgetary process and medium-term fiscal framework to manage and control expenditure”.

The latest is the recently passed Offshore Petroleum Bill that sets up a department under the PMO to oversee petroleum activities and a petroleum fund to receive any potential windfall out of any oil found in Mauritian waters. Once again, outside parliamentary scrutiny. Take PMSD MP Kushal Lobine’s plea when debating the bill in parliament on December 7, as an example; instead of a department under the PMO overseeing the industry outside of parliamentary view, “I propose that there should be an Offshore Petroleum Commission set up if this bill is going to be enacted. Also, this bill should include the establishment of a parliamentary committee to oversee all operations of this commission and participate in the decision-making process when it comes to the approval of a model petroleum agreement.” With regard to disclosure of information regarding petroleum activities, he argued that this is needed, “so that parliament remains sovereign in its responsibilities to be provided with all information with regard to the applicability of this bill when it will be enacted”.

He ended his speech by asking for a select committee of parliament to be established to allow for wide public consultations over the project to set up an oil industry. Looked at in its entirety, what Lobine was proposing was reversing a decades long trend of cutting out parliament and giving it a voice when it comes to a potentially lucrative oil industry. This was as much about parliament as it was about a prospective oil industry. “This is parliamentarians trying to get back a little power that they should have anyways,” argues Seegobin, “but the problem is that things like select committees are set up at the discretion of the prime minister.” When it comes to shielding public finances from parliament, the tricks may be old, but they are being embraced with a new gusto.

4. Exploiting standing orders

The problem with parliament is not only that it does not look like it can hold the government accountable anymore, but that even its own routine functioning seems to be becoming increasingly difficult. Here too, we see the roots of the current parliamentary dysfunction in the adroit exploitation of old loopholes. Since the establishment of parliament in independent Mauritius and its transition into a republic, the bulk of the standing orders governing the functioning of parliament have remained unchanged. What has changed has proved to be far-reaching: in 1994, the standing orders were changed to set a limit on how much time MPs have to question ministers.

In the new version formalised in 1995, the new section 22 limited PNQs to 30 minutes and questions from MPs to ministers to 120 minutes. “Before that question time from MPs, the only way to keep the executive accountable could last well into the evening,” Purryag points out, “now it is time-bound, and this is why so many questions remain unanswered in parliament.” This, coupled with the fact that the standing orders also allow the prime minister to attach a certificate of urgency to a bill – allowing the government to rush through bills in a single sitting – means that over time, the power of parliament even to debate has been progressively curtailed. “You can have a cabinet meeting on Friday and decide to present a bill on Tuesday leaving the opposition only the weekend to scrutinize it,” complains Meetarbhan. Today, the problem is that the near-totality of bills presented to parliament via the PMO come with certificates of urgency, including potentially dangerous or consequential ones, like the IBA (amendment) Bill and the Offshore Petroleum Bill. “This is not just a problem for the opposition, but it also takes the power away from the public by taking away time for it to discuss and debate bills and take positions on them,” Seegobin posits. Once again, old loopholes, but a new passion to exploit them.

This can also be seen in other ways. Take choosing a speaker, for instance. In 1996, section 32 of the constitution was amended to allow for non-MPs to become speakers. The unspoken rule was that the office would not just be thrust on unelected candidates. This was reversed after the 2014 election when Maya Hanoomanjee was made speaker, marking a new era of unashamedly political speakers, such as Sooroojdev Phokeer.

The cost of this has become all too obvious after 2019: standing order 49 allows a speaker to suspend MPs without much explanation, but for how long depends on a motion from the prime minister. “In effect, a group of MPs can sanction another group of MPs and just using their brute majority can get rid of them for a while,” insists Meetarbhan. The problem is that if the speaker is aligned with the ruling party, each opposition MP is literally at the mercy of the ruling party just to sit in parliament without being suspended. Hence, the unending string of suspensions of opposition MPs to this day, with the Supreme Court still having to pronounce itself on this issue.