Qs & As – Crossing The Floor
Crossing the floor by parliamentarians and regional councillors has been a plague in some countries and certainly not unknown here too. Legal measures to prevent or ban such occurrences by a party member have to contend with the latter’s freedom of thought or conscience should he or she feel uneasy with policies of the party under whose banner he/she was elected. But more often than not it may be a matter of motivated trade-offs to bolster slim-majority governments for less than lofty reasons, but which one can surmise. Lex shares his views below.
* Municipal councillors Ashley Mungapen, Rajesh Bhinda and Maynanda Rajaratnam have recently been revoked after they switched sides to join Nando Bodha’s newly-formed Rassemblement mauricien. The councillors seem to believe that their revocation is illegal, and they intend to contest that decision. What does the law provide in such instances?
There must be a legal provision in the Local Government Act that the minister of Local Government used to revoke the councilors. The revoked councillors are claiming that there is no such law, but section 37 of the Local Government Act provides that where a person who has been elected as a Municipal City Councillor, Municipal Town Councillor or Village Councillor resigns from his group, he shall be deemed to have also resigned his office as Councillor. Since these councillors were elected under the banner of the MSM/Lepep Alliance they are deemed to have left their group.
* What defies understanding is why it’s only municipal and village councillors who have been singled out for revocation in case they cross the floor, not Members of the National Assembly, who might be more amenable to party switching with the prospect of a ministerial post. What could be the rationale behind this unequal treatment before the law?
Presumably if local councillors be it municipal or village ones are allowed to cross the floor freely this may upset the balance of political power in a council and may negatively impact on the smooth running of local administration.
No government in Mauritius would ever come with a law that would cause a member of Parliament who crosses the floor to forfeit his seat. The gamble is too high at the level of central government and the costs of holding a by-election with each crossing might jeopardise the majority of the government especially if it is a thin majority. Besides any party in power would always be prone to poach members of the Opposition to bolster its majority.
* Besides the prospect of a ministerial post and/or personal benefits, there might be good reasons – religious, philosophical or ideological – for an elected member to abstain from or vote against his own party or simply to cross the floor. But a Canadian court however held a different view in the case of Fletcher vs The Government of Manitoba (2018): it ruled against the contention of Mr Fletcher (who was bound by a floor-crossing prohibition) that the law breached his right to freedom of association and/or thought. What could have been the reasoning of the Canadian court?
One of the arguments used by the lawyer of Fletcher was precisely that the law on prohibition to cross the floor in Manitoba impinged on his freedom of association or expression. But this was rejected by the court as there was nothing on the facts to establish that Fletcher would lose such a right. Whether a prohibition on crossing the floor would be a derogation from freedom of association and would be regarded as justifiable in a democratic society remains to be seen.
Moreover, the judge ruled that legislatures have the right to set their own rules, and the courts should not interfere. The ban on floor-crossing did not prevent Fletcher from working informally with any party or from taking out a party membership. That law has been repealed. The minister of justice justified the repeal by stating that that the prohibition was “unparliamentary” and went against… the Westminster parliamentary traditions that Canada upholds.
* There are some countries, however, like India, the Maldives and Bangladesh have laws that removes Members of Parliament due to floor crossing. Is this a matter worthy of consideration when and if our Constitution is revisited — even if MPs would not want to shoot themselves in the foot?
Even in countries where legislation has been enacted to prohibit floor-crossing, there have been criticisms of such legislation. In the Canadian case of Fletcher that you mention, the lawyer of Fletcher, Bill Gange, commenting on such legislation stated: ‘I can understand why party leaders would like this legislation. It’s legislation that gives them a lot of control over their backbenchers.’
* On the other hand, one can well understand the hard line adopted by party establishments against members who vote against the party line, cross the floor or simply sit as independents. This latter posture has been adopted by some Mauritian MPs in recent years, weakening in the process the voting strength of the party under whose banner they were elected. Is that acceptable?
Yes. If a member of Parliament who was elected on a programme of his party realizes that his party is just going against all if not most of what was promised to the electorate or is weltering in undemocratic practices or is tolerating widespread corruption, then that member would feel uncomfortable to continue sitting on the party benches in the House. Why can’t he switch sides then?
* On the other hand, it would appear that the undue influence of big money and private interests in politics has increased here as elsewhere in many countries these last few decades. It might not be only about vote buying of the electorate; it would seem MPs could also be influenced with the right inducements to put questions or abstain from doing so if that would further or harm private interests. What’s your take on that?
As regards private interests, especially business interests, that is quite possible, but these will have to be substantiated by material facts. However, this question must also be viewed from another angle. When government backbenchers put questions, one of the factors that must be considered is whether they have been prompted to do so for the national interest or for protecting some other unavowed interests – private or political.
Given the trend of Question Time in Parliament recently, it would seem that most of the questions put by some government backbenchers are tailor-made to protect the interests of ministers or some other interests. If that is indeed the case, then one could say that some MPs are being influenced with the right inducements to put questions.
* There was the political scandal – “cash-for-questions affair” – in the United Kingdom in the 1990s, following the allegation made by ‘The Guardian’ in October 1994 that London’s most successful parliamentary lobbyist, Ian Greer of Ian Greer Associates, had bribed two Conservative MPs Neil Hamilton and Tim Smith to ask parliamentary questions and perform other tasks on behalf of Mohamed Al-Fayed, the Egyptian owner of Harrods department store. Big money and private interests again, Isn’t it?
Politics is often a matter of big money and private interests.
What is happening to a historical institution like the Mauritius Turf Club? Isn’t that due to the lobbies of a businessman close to those in power? Why was the BAI dismantled? For whose benefit?
* Those bad winds have fortunately not reached our shores to date…
We do not have an official lobby policy here. But many associations, religious or otherwise, would lobby their elected members on communal and caste lines to obtain an advantage. This is the reality of Mauritius. Whether big money is involved is anybody’s guess.
* Published in print edition on 31 August 2021
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