The idea has come back again: Roshi Bhadain and Rama Valayden proposing that the entire opposition resign from the National Assembly in a bid to provoke a new general election. This is not the first time they have floated this idea, nor the first time that the parliamentary opposition parties have rejected it.

1. Will it really force a new general election?

When leaving court last week, Reform Party leader courts step in? Roshi Bhadain called for the parliamentary opposition parties to collectively resign from the National Assembly. He is backed up by Rama Valayden. This, of course, is not the first time that both have called on the parliamentary opposition to quit the National Assembly: back in April this year, Valayden made a similar proposition while simultaneously calling for a movement of “civil disobedience”, while Bhadain floated the idea for the first time in October 2020. Just as the first time around, the parliamentary opposition parties have either rejected it outright or simply ignored the call. “This is a political demand and whether to accept it or not is a political decision,” constitutional lawyer Milan Meetarbhan, who has penned a commentary on the Mauritian constitution, tells l’express, “but what is sure is that this proposal has both legal as well as constitutional ramifications”. 

The reason the mainstream opposition does not seem to be biting the bait is that the proposal rests on a twin set of assumptions; both of which are questionable at best. The first assumption behind the proposal is that a mass resignation of the opposition would force the hand of the government to hold fresh elections, due next at the end of 2024. The trouble is that there is no legal reason for the government to react in that way. “There is nothing that can force a general election like that, there is no compulsion on the government to hold such an election,” says former Supreme Court judge Vinod Boolell, “such resignations can force the holding of by-elections under the Representation of People Act, but it certainly does not mean that general elections will follow automatically.” Parliamentarians, he adds, can cross the floor from one side to the other, but there is “no legal need for an election as long as the government keeps its majority. This is not a realistic proposal”. 

By-elections 

There is some precedent for looming by-elections forcing early general elections in Mauritian political history. Prior to the 1987 elections, a series of resignations from parliament, that of Harish Boodhoo, Serge Thomas and Lutchmeeparsad Ramsahok, forced the then MSMled government to avoid the problem of a string of byelections by holding general elections in 1987. The differences between the situation then and today are obvious: firstly, the MSM-led government coming to power in 1983 was already towards the tail-end of its mandate and governments generally try to avoid the prospect of losing by-elections just ahead of general elections that are coming anyway and hand political momentum to their opponents. “Not just in 1987, but we saw this in 2005 and 2019 (following the resignation of former finance, and then foreign, minister Vishnu Lutchmeenaraidoo) as well, but all of these were just ahead of general elections anyways”. Today, the situation is very different with the government having just won a fresh mandate in 2019 that ends towards the end of 2024. “The government will not give up three more years in government just like that, so this assumption is incorrect,” lawyer Sanjay Bhuckory points out. The second major difference between today and 1987 is that back then the resignations were taking place from within the government benches and threatening its majority; should the whole opposition resign from parliament tomorrow, that would have no effect on the hold of the ruling majority in parliament. 

With no general elections scheduled for the next couple of years and no threat to their numbers in parliament, there is no reason to assume that the government would simply up and quit just because the opposition leaves parliament. “For the government the best case scenario is if it decides to contest the seats vacated by the opposition in the by-election and grabs a few more,” outlines Bhuckory, “the worst case scenario is that it sits out the byelections entirely and leaves it to the opposition.” It gains nothing, but loses nothing either. 

With the opposition having this year split between the Labour Party on one side, and the MMM and the PMSD on the other, over the question who would present a prime ministerial candidate from the opposition parties for the next election, one could easily foresee a repeat of the 2017 by-election in Quatre-Bornes where, with the government sitting out the by-election, opposition parties lunged at each other instead. “The assumption is that the government would face some kind of moral pressure at seeing empty opposition seats and organize an election,” Meetarbhan points out. This question was settled back on June 16, last year when during the budget debates 2020-2021, the opposition was simply expelled from parliament for boycotting the speech of former deputy prime minister Ivan Collendavelloo; and with no opposition in the House, the debates on the committee of supply were wrapped up in just 17 minutes.

2. What does “three-quarters” mean?

THE next major danger of the opposition simply quitting parliament is leaving the field wide open for the government to push through changes to the constitution. So, what does the constitution itself say? According to section 47 (2), major constitutional changes, “shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three-quarters of all the members of the Assembly”. That same section also states that, aside from such constitutional changes needing a three-fourths majority, for things like changing the president, or speaker or, according to section 18 of the constitution, imposing a state of emergency, two-thirds of votes in parliament are necessary. “The real problem is that, under section 18, the government can interpret this to mean that it may use its new majority to impose an emergency,” Boolell points out. 

With the constitution outlining what kind of supermajorities are needed to push through which constitutional changes, the question now is three-fourths of which number is needed to change the constitution? “There is some confusion here about the majorities needed to change the constitution,” explains Meetarbhan, “when we say three-quarters, this does not mean just those parliamentarians there and voting, some can abstain or be absent, my own view is that this means three-fourths of all MPs in parliament at that point in time.” 

This leads to the second problematic assumption that Bhadain and Valayden are proposing: section 31(2) of the constitution explains that parliament “shall consist of persons elected in accordance with the first schedule, which makes provision for the election of 70 members”. This is interpreted to mean that no matter how many MPs there actually are in the National Assembly, the three-fourths needed will be counted from the total of 70 MPs that parliament can consist of. Hence, the theory goes that even if the whole opposition quit tomorrow, the government still would not have the three-fourths of 70 MPs needed to change the constitution. The problem with this argument is that although the constitution says that parliament is made up of 70 MPs, in practice, not all parliaments have actually had 70 MPs. 

Size of the Assembly 

This has to do with the way in which the eight bestloser seats (BLS) are allocated after each election. After the 60-0 elections in 1982 and 1995, the Electoral Supervisory Commission was faced with the problem that since there were no losing candidates from the winning side, they could not allocate all eight BLS seats to the opposition without affecting the overall result. So, although the ESC initially refused to allocate any BLS seats after 1982, the Supreme Court waded into the issue and mandated that only the first four BLS seats be allocated (meaning that the parliament resulting from the 1982 election just had 66, rather than 70 MPs). The same thing happened in 1991 and 1995. Having parliaments made up of less than 70 MPs is more common that one would assume, aside from 1982, 1991 and 1995, it also happened after the 2010 and 2014 elections when just seven BLS seats were allocated. 

If the size of parliament itself can vary with each election, how can the three-fourths needed to push through constitutional changes be set in stone? “Let’s say you have a majority of 36 MPs, and 22 MPs from the opposition resign, then there are 48 MPs left in parliament,” says Meetarbhan, “the new three-fourths threshold would be calculated out of those 48 MPs left in parliament at that time. So, whereas in a parliament of 70 MPs, threefourths would mean the votes of at least 53 MPs; in a smaller parliament, it would be three-fourths of whoever is a member of parliament at that time.” 

According to Boolell, “it would be so easy for the government to come to such an interpretation”. What all this means is that, should the opposition resign as a bloc, by-elections can be held up to nine months after that resignation. During that window, with fewer MPs left in parliament, the government with its current numbers would suddenly get a three-fourths majority. “Whether all this is possible would fall on the shoulders of the Speaker of the National Assembly,” Bhuckory points out. The problem is that having never faced such a situation in the past, the courts have just not looked into the issue of what constitutes such a super-majority in the National Assembly.

3. Could the courts step in?

Opening such a temporary window, by handing the government an artificial supermajority to change the constitution, is fraught with problems. The first is that, should the government decide to use it to change the constitution, there are few checks and balances to prevent that. Firstly, Bhuckory points out, “unlike in France where there is a constitutional council that studies legislation with constitutional implications, in Mauritius there is no such mechanism; you will have to wait for such changes to be made, then someone to be directly affected by them to get locus standi and then go to court”. 

A process that, Meetarbhan warns, could take three years at a minimum. More than enough time for the government to change the constitution and then ride out the rest of its term without the changes it would bring in being challenged. The second problem is that, should the opposition resign enmasse, it would be handing such an opportunity to a government with a proven track record of trying to bring about major constitutional changes. In 2016, for example, it attempted to push through the prosecution commission bill that would have taken away control of state prosecutions from the Director of Public Prosecutions and put it firmly in the hands of the government through a government-appointed Prosecution Commission. Then in 2019, it brought forward the Political Financing Bill that would have transformed the ESC into a top-heavy bureaucracy and allowed the government – through picks at the ESC – to look into where their political opponents got their money from. Both failed not because the government realized the error of its ways, but because they did not have the three-fourths majority to make the constitutional changes that would have been necessary.

The Lincoln case 

The third, and final problem, is that it is debatable whether the courts would themselves be in a position to decide on such changes. This attitude goes back a long way. Take for instance the Lincoln case in 1973 that arose out of the constitution of Mauritius (amendment) Act that same year that in effect abolished by-elections. In that case, the Supreme Court decided that the “constituent power of Parliament is, on the other hand, conferred by section 47 of the constitution which subjects its exercise solely to the requirements of that section itself, that is to say, conditions it upon the obtention of a specified number of votes in the Assembly. Beyond that no restriction is placed by the constitution to the amplitude of parliament’s power to alter its provisions… while the court will unhesitatingly, conscious of its solemn duty as guardian of civic rights, seize every opportunity of slowing down to the utmost whatever it feels to be an erosion of the rights of citizens under true democratic rule, it is obvious that its desire for intervention must yield before a clear and explicit text. All this is to say that if ever and whenever an evil of the brand foretold by the petitioners were thought to have been or to be likely to be wrought by those at the helm of government the antidote is not in this court’s giving; the issue must be fought at the bar of public opinion and the people be left to seek their own way of venting their dissatisfaction of those who rule them. This may not be the ideal course and is naturally fraught with danger, but the court cannot help it unless in its turn it were prepared to elevate itself above the law and assume powers which it does not possess”. 

That conclusion was backed up by the Privy Council as well when the case went there in 1982. This, generally speaking, has been the courts’ position since then. Put simply, while the courts could decide on which actions or laws are unconstitutional and strike them down, it cannot decide on what the constitution itself should look like. Having a mass resignation of the opposition might look dramatic, but handing the government a nine-month window to change the constitution willy-nilly would prove a disaster. Which is why, being resurrected once again, the idea still has no takers.