How much can the National Assembly insulate itself from criticism? This question will be raised after parliament has sent a case to the Director of Public Prosecutions to look into an article by l’“express” carrying a photo of a sleeping minister and comments by an opposition MP that were not appreciated. What is the contempt of assembly law about?

What the law says…

The National Assembly has referred a case to the office of the Director of Public Prosecutions (DPP) to look into whether an article in l’express broke the law delaing with contempt of assembly. The whole case started after Stephanie Anquetil of the opposition Labour Party snapped a photo of minister Kalpana Koonjoo-Shah napping in the National Assembly. Anquetil officially apologized to the speaker, Sooroojdev Phokeer, on June 16 for allegedly misusing her mobile phone in parliament. The next day, on June 17, l’express carried an article detailing the incident and a statement from Anquetil remarking on how quick parliament was in acting against her in contrast with other instances where government MPs were involved. That same day, a motion appeared in the National Assembly, brought by MSM MP Dorine Chukowry to refer the matter to the DPP, arguing that Anquetil’s comments carried by l’express might amount to contempt of assembly. The motion was carried by the government benches to send the file to the DPP.

What allows the National Assembly to involve the DPP in this matter is section 74 (4) of the Standing Orders which reads: “On the day appointed by the speaker for his or her decision in case he or she considers that the circumstances reported to him or her amount to an offense under the National Assembly (Privileges, Immunities and Powers) Act, he or she will so inform the Assembly and the Member who raised the matter with him or her will immediately table a motion, no amendment, adjournment or debate being allowed, setting out briefly the nature of the complaint and seeking that the matter be referred to the Director of Public Prosecutions for appropriate action”. This is what happened on June 17. “Here it is not the speaker’s decision, but it will be the DPP who will decide whether there is an offence and the DPP may then refer the matter to court,” explains constitutional lawyer Milan Meetarbhan.

But what is contempt of assembly as defined in Mauritian law? “What contempt of assembly is, is laid out in the National Assembly (privileges, Immunities and Powers) Act,” says former president and ex-speaker of the National Assembly Kailash Purryag, “it is from this law that this offence comes.” More specifically, it is section 6(1)(s) of that particular law which criminalizes. “Uttering or publishing any statement reflecting on the conduct or character of, or containing or amounting to an accusation of partiality in the discharge of his duty by the Speaker, Deputy Speaker or Chairperson of any committee.” This particular crime is an inheritance from UK law which goes on to regulate much of what the National Assembly does, despite, as Meetarbhan argues, there being some major differences between the UK and Mauritius: “We have some of these things from the UK for historical and constitutional reasons; the question is to what extent can such laws be applied in the Mauritian context, where it is not parliament, but the constitution that is supreme.” Generally wary of getting involved in parliamentary business, laws such as those of contempt of assembly, rely on the judiciary to mete out punishments for offenses deemed to have been committed against parliament. “In dealing with such a law, you have to strike a balance where parliament is not misusing it, while at the same time you cannot just allow bad faith attacks on parliament,” insists Purryag. In short, the whole point of the case is to what extent can the National Assembly punish its critics, both within and outside parliament, who point out problems in the way it is working.

Back to the future?

This question is becoming more urgent to answer simply because the current parliament is becoming increasingly comfortable in brandishing the threat of a prosecution under the contempt of assembly law against its own critics. Even before Anquetil and l’express, last April, the newspaper Le Mauricien carried a statement by opposition leader Xavier-Luc Duval over the speaker’s handling of a private notice question on April 5, 2022 with Duval stating that “the speaker is mocking the constitution. When he stops the leader of the opposition from doing his job, he is mocking the constitution”. In response, speaker Phokeer announced: “I wish to draw the attention of the House to the fact that the words uttered by the Hon. Leader of the Opposition and its ensuing reporting may amount to a contempt of the Assembly.”

Even before that, in July 2021, when a Supreme Court usher attempted to serve a summons for a hearing on an electoral petition to an MP, the National Assembly once again warned this was entering the territory of contempt of assembly. The ease with which the National Assembly is lording the law, and with the current case being sent to the DPP, it’s easy to forget just how problematic (and archaic) this law actually is. “This is not the first time that such cases have been sent to the DPP,” argues Meetarbhan, “but there have been no actual prosecutions of it.”

To understand just how far back the National Assembly is reaching can be gleaned from the fact that the last Mauritian court case dealing with contempt of assembly stretches all the way back to 1957. This was the case of Coralie. In April 1957, the Port Louis district court prosecuted a publication for contempt of the legislative council (as the contempt of assembly was known back then). The publication was called L’Epée in which an article criticised the members of the colonial-era legislature of Mauritius in the following words: “Il y a des salauds qui, au Conseil, prennent des mesures pour que dure au pays la Misère sur laquelle ils comptent pour arriver.” The district court sentenced the publisher to six weeks in prison and a Rs1,000 fine. In passing the sentence, the district court magistrate was clear about why he was passing such a sentence, “the punishment must be such as to deter others who might feel so inclined from playing lightly with the honour, reputation and dignity of the Legislative Council”. On appeal, although the conviction was upheld, the six weeks in prison were considered too harsh and replaced by an additional Rs300 fine.

This was the last time that a case involving contempt of assembly successfully prosecuted in Mauritian legal history. And the last time that such a case would make its way into the courts. Reflecting a more modern outlook, Geoffrey Robertson’s preliminary report submitted to Mauritius in 2013 looking at media law stated that prosecutions such as those in the Coralie case would seem out of place today: “Coralie was a case in the 1950s when human rights and free speech principles were not fully developed. Today, they should protect citizens against jail and fines merely for criticizing Parliament, even if their criticisms are wrongheaded or malicious.” In other words, if there is something wrong with the National Assembly, it should correct itself rather than look to revive archaic and colonial-era laws to try to fine and jail its critics just for pointing out the problem.

More recently, in August 2007, when then-minister Anil Bachoo was assaulted in the lunch room of the National Assembly, Rosario Givenchy Draboucan was in court. The latter was initially charged with contempt of assembly under the National Assembly (Privileges, Immunities and Powers) Act, but that charge was swiftly abandoned, and he was charged again for simple assault against Bachoo. That would have been the first time in the history of independent Mauritius that the courts were prosecuting someone for contempt of assembly. But it turned out completely different, leaving unchanged the fact that to look for a case in court involving contempt of assembly, one has to delve way back to 1957.

Other opinions of this law

“Such a law has been criticised as no longer relevant,” says Purryag, pointing out to international authorities such as the Inter-Parliamentary Union (IPU), a global grouping of legislatures, “the IPU has come to the conclusion that such laws are not in line with democratic practices.” The IPU, for instance, points out that in the UK, from where Mauritius has borrowed this law, “British Parliament has been extremely hesitant to invoke its penal powers, and the Canadian parliament almost never proceeds against journalists, whatever they may write, in the interests of safeguarding the freedom of the press.” In fact, by brandishing and looking to revive contempt of assembly legislation, the Mauritian parliament is moving away from the example of legislatures such as UK’s or Canada’s, and moving closer to resembling parliaments such as Zambia’s where in 1993 the opposition leader was suspended just for stating that the speaker was biased. A curious forerunner of the warning that came out of the Mauritian parliament concerning its own opposition leader in April.

Coming back specifically to Mauritius, the attempt to revive and weaponize this law does not sit easily with criticisms made in Geoffrey Robertson’s preliminary report in 2013 that looked to a media law in Mauritius. Concerning the contempt of assembly law, the report qualified it in strong terms as being “obnoxious to democracy” adding that “the use of an obsolete criminal jurisdiction by MPs to punish their own critics in the media is incompatible with modern free speech guarantees, not to mention democracy”. What Robertson concluded was: “In my view, the Court’s power to jail critics for contempt of parliament should be abandoned and MPs should be content with the opportunity to sue their critics for defamation or breach of privacy.”

All of this is of course known to the National Assembly as well as the courts, which is why prosecutions in independent Mauritius under this law have just not happened. Should a case concerning a napping Kalpana Koonjoo-Shah appear in the courts, it would be the first since 1957. The point that should be remembered, concludes Meetarbhan, “is that the expectations worldwide about the rule of law and the privileges of institutions have changed, no institution should be allowed unchecked powers and privileges”.