Labour party MP Patrick Assirvaden has taken the speaker Sooroojdev Phokeer to court over the rejection of his parliamentary question. So how much power does the speaker have over the fate of questions in the National Assembly?

What’s new about this case?

On July 31, Labour Party MP Patrick Assirvaden lodged a request for judicial review in the Supreme Court over one of his questions that had been rejected in parliament. The question was about the police commissioner hiring private lawyers, Sharmila Sonah-Ori and Ravi Yerigadoo, to contest bail orders for Bruneau Laurette, Akil Bissessur, Sherry Singh and the dropping of provisional charges against Chavan Dabeedin. The decision to resort to private lawyers and trying to cut the Office of the Director of Public Prosecutions (DPP) out of high-profile and politically-sensitive criminal cases is something unprecedented in the Mauritian judicial system where the police has traditionally had recourse to private lawyers only in civil, not criminal cases where the DPP constitutionally holds sway.

The fight between the police and the DPP has now culminated in a case lodged by the police commissioner accusing the DPP of stepping on his toes, constitutionally speaking. What Assirvaden wanted to ask was how many lawyers the police had commissioner hired, how much they are being paid and on what basis they had been selected. “While the speaker can refuse questions, he cannot do this in a capricious manner,” says Rajen Narsinghen, senior law lecturer at the University of Mauritius, “this is a good case to test the limits of that power”.

The case put in by Assirvaden is in a way a novel one: “What we are asking for is a constitutional declaration by the courts in a case of judicial review,” explains Sanjay Bhuckory, one of the lawyers representing Assirvaden, “this is accepted practice in the UK now, but has not yet been adopted here in Mauritius”. Why argue on the basis of the constitution? That’s because while the Mauritian courts give a wide latitude to the National Assembly to conduct its own affairs, that does not extend to violations of the constitution.

In the 1998 case of Utchanah, the Supreme Court insisted: “We are of the view that parliament may hide neither behind the cloak of privilege or immunity, nor behind the ouster of jurisdiction in order to flout the constitution which is the very essence of its existence. This court does possess jurisdiction to determine whether parliament is acting within boundaries set by the constitution.” Earlier, in 1993, the Supreme Court overturned an attempt to declare the seat of Labour Party leader Navin Ramgoolam vacant. Nevertheless, says Narsinghen, the problem is that Assirvaden will have to get over the judiciary’s traditional reluctance to get into parliamentary business: “The courts just do not like to get dragged into the political arena.”

The power of the speaker

But how does Assirvaden plan to legally challenge the seemingly unassailable power that the speaker Sooroojdev Phokeer have over what happens inside parliament? The Standing Orders seem to give Phokeer a wide berth, and in this case it was section 22(1)(f) that was relied on to reject the question, that is any question that is “so drafted as to be likely to prejudice a case on which a judicial decision is pending” and then section 27 that empowers the speaker to reject such a question.

The first prong of Assirvaden’s case is to deny that his question was sub-judice at all and by rejecting it, “he did so in defiance of those standing orders and in doing so violated freedom of expression,” argues Bhuckory. The first issue is that the nature of the questions themselves – the identity, selection method of payments - have hardly anything to do with the way that a court will decide the fight between the police commissioner and the DPP which is fundamentally about the extent to the power of each of those constitutional offices when it comes to running criminal trials.

“This was just a pretext”, says Narsinghen, “the National Assembly is supposed to look into how public funds are being spent. This is not just a colonial-era legislative assembly meant to just pass laws.” The second issue is that the timing of the question means that this can hardly qualify as sub-judice at all; “this is a civil matter and it becomes sub judice only when it’s listed on the roll of the Supreme Court, when the case is in shape and the pleading stage is done,” says former speaker of the National Assembly Kailash Purryag. Given that the case by the police commissioner against.

The DPP has just been lodged and still in its preliminary stages, “the question of sub judice does not apply at all in this case!” Purryag concludes.

The second prong is about the fact that even this argument about it being subjudice came from a functionary in parliament – in this case the acting clerk of the National Assembly – and not from the speaker himself when announcing the rejection of Assirvaden’s question. In other words, when saying that the question was being rejected, no reason was offered by Phokeer himself. “While he does have the power to reject a question,” explains Purryag, “he still has to give a reason why. Even in the UK the courts have established that in the exercise of any power reasons have to be given. There is always the option of amending a question to bring it in line with parliamentary rules before taking the step of rejecting a question outright which is an extreme step”. He adds that during his tenure as speaker he did not exercise that dramatic step.

The third prong of Assirvaden’s case is about the procedure itself. While the courts have traditionally held that parliament is free to conduct its own business. In the 1973 case of Lincoln the Supreme Court argued that, “no doubt the Supreme Court has jurisdiction to decide whether an act has been passed in accordance with the constitution or not, but it would be neither legal nor reasonable for it to interfere with the internal business of parliament. It is for the Assembly and the Assembly alone, to decide when it will sit, and what business it will discuss”.

One argument available to Assirvaden is that since it was technically the acting clerk and not the speaker that decided to initially reject the question – and that it was the acting clerk and not the speaker that furnished the reason why – proper procedure was not followed in parliament. Not only was the standing order applied properly, but even procedurally the whole episode was flawed. “A judicial review is about the process as much as about the decision,” explains Bhuckory.

But here Assirvaden will have to contend with a potential counterargument from Phokeer: in the 1999 case of Bérenger against then speaker Sir Ramesh Jeewoolall contesting a decision to suspend him from parliament on grounds that the proper parliamentary procedure was not followed, the Supreme Court decided not to intervene on a procedural question within parliament and insisting to limit the powers of their intervention only on questions where there is a potential violation of the constitution. “No action shall lie against the respondent or any member of the Assembly, for that matter, in respect of what is said or done by him within the walls of the National Assembly” the court concluded in that case. The particular point will hinge on Assirvaden’s ability to differentiate between what happens within the ‘walls of the assembly’ and whether functionaries such as the acting clerk fall within that.

"There is always the option of amending a question to bring it in line with parliamentary rules before taking the step of rejecting a question outright which is an extreme step.”

The trend

Assiravden’s case is attempting to paint Phokeer’s move as just the latest in a long-running trend where the speaker of parliament has allegedly used his office to shield the government. In his case, Assirvaden points to an episode from March 23, 2021 where he asked foreign minister Alan Ganoo about the status of Ambassador Showkutally Soodhun. Despite the fact that the question was allowed and that Ganoo himself did not object to the question, at sitting of March 30 that year Phokeer announced that he was chucking the question out of the written and video record of parliament ostensibly on grounds that it could complicate relations with the United Arab Emirates. By acting unprompted in this way, Assirvaden argues Phokeer, “substituted himself to, and acted as an agent of, the executive in relation to a matter of great public interest”.

One could also look at the earlier episode of November 2020 when then-Leader of the Opposition Arvin Boolell attempted to ask a private notice question on the Angus Road saga. Specifically, about whether there was an investigation into whether prime minister Pravind Jugnauth had breached the Financial Intelligence and Anti-Money Laundering Act (specifically, on the legal limits on cash payments) in relation to payments made to the Bel-Air Sugar Estate. While there is a rich history of questions being amended in parliament, that marked the first time that an entire line of questioning had been excised from a private notice question. “What is happening today is almost the same thing,” concludes Narsinghen, “it’s never good when the speaker becomes the government’s goalkeeper.”