“The threat of suspension or expulsion seems to have become the new norm of parliamentary democracy”

Qs & As

Legislative Tyranny and Arbitrariness

‘The Court does possess jurisdiction to determine whether Parliament is acting within the boundaries set by the Constitution’ — Judges Bernard Sik Yuen and Vinod Boolell

By Lex

In this week’s Qs & As, Lex analyses and reflects on the authority and powers of the Speakership and the limits of such powers when they arbitrarily or unfairly curtail the Opposition MPs in the conduct of their elective duties through suspensions and expulsions backed with a simple vote of the House majority. As Lex points out, Courts are generally reticent to intervene as the Assembly may regulate its own procedure but the operative unambiguous rider is “subject to this Constitution” which is the only avenue through which, as jurisprudence shows, the Court may be called upon to exercise its judgement on excesses that may negate Constitutional provisions.

* On 28 Jan 22, the Indian Supreme Court quashed the Maharashtra Legislative Assembly’s resolution of July 5, 2021, which suspended 12 BJP MLAs for a period of one year for alleged disorderly behaviour in the House. The bench said that such suspension, which exceeds the term of a session, will amount to a punishment of the constituency, as it remains unrepresented in the Assembly, and added that it can be “dangerous to democracy” since it can result in the manipulation of a majority in the house when voting on important matters arise. There may be circumstances that differ, but does it strike a chord with what has been happening in our own Parliament?

If you go to the website of the National Assembly, one can read: “One of the most important qualities of a Speaker is impartiality. He must be above party politics. Once elected to the Chair, he owes his loyalty to the dignity of Parliament.”

Has this been the case since the 2019 elections? Or has it been an exercise of power by the speaker that borders on an abuse of his authority? We should better out of respect for the Court to leave it to our judges to determine.

* The resolution of the Maharashtra Assembly for suspending the MLAs for a period of one year was contrary to the rules framed under Article 208 of the Indian Constitution, which proscribes suspensions lasting one year. Senior advocate Mahesh Jethmalani, who appeared for the suspended MLAs, said that “the best thing about it is that it prevents legislative arbitrariness and tyranny against an opposition”. The other “best thing” about this judgement is that an independent judiciary was prepared to put a check on the majoritarian attitude of the government. What do you think?

Whether we like it or not, to use the words of advocate Mahesh Jethmalani, we would indeed be living in a time of legislative tyranny were the Speaker to adopt a harsh attitude towards the Opposition and that, egged on by comments bordering on contemptuous ridicule or mockery and the clapping of hands by the majority, he would proceed to suspend Opposition MPs for an abusively long time. My own comments are not dictated by partisan considerations, since the threat of suspension or expulsion seems to have become the new norm of parliamentary democracy.

* But Speakers exercise a quasi­-judicial function and are therefore expected to act fairly and be seen to be protecting the rights of parliamentary minorities from the majoritarian attitude of governments? Isn’t this is what is expected from the most important office in the House – the Speakership?

Of course. When the speaker is chairing the proceedings of parliament, he has to ensure that order and the dignity of the House are maintained in what we call the “Temple of democracy”. The authority of the speaker is derived from the Standing Orders, which are made in accordance with constitutional provisions. Section 48 of the Constitution clearly spells out that “Subject to this Constitution, the Assembly may regulate its own procedure and may, in particular, make rules for the orderly conduct of its own proceedings.”

The regulations so made are subject to the Constitution. As stated in the Supreme Court of India judgement referred to earlier, “The [Indian] Constitution, by itself, does not specify the limitation on the privileges of the Legislature, but, indubitably, those privileges are subject to the provisions of the Constitution.”

* section 48 of our Constitution, relating to ‘Regulation of Procedure in National Assembly’ states that ‘subject to this Constitution, the Assembly may regulate its own procedure and may, in particular, make rules for the orderly conduct of its own proceedings.’ Can these rules and their implementation be subjected to the scrutiny of the court?

The Supreme Court has always been reticent to interfere with the manner in which the speaker exercises his power with the exception of the historical judgment of late Justice Rajsoomer Lallah in 1993 in the case lodged by the then leader of the opposition, Navin Ramgoolam, challenging the attempt of the government of Sir Anerood Jugnauth to disqualify as an MP.

Justice Lallah wrote: “…where Parliament exercises sovereign powers under the Constitution and the Courts are empowered to exercise a particular jurisdiction which itself requires an enquiry into the exercise of those powers by Parliament, then the jurisdiction of the Courts must be exercised to the appropriate extent in order to enable it to determine the particular question that is before it. It would be misleading, in those circumstances, to invoke the sovereignty of the National Assembly which would have the effect of paralysing the effective exercise of the constitutional jurisdiction of the Court.”

* But it is held that the Courts have no jurisdiction over Parliament, especially those based on the Westminster model, since any interference in its internal proceedings would be considered as a breach of the principle of separation of powers implied under the Constitution. Is that correct?

Not necessarily. In a recent case in Great Britain, British Prime Minister Boris Johnson’s advice to the Queen that parliament should be prorogued for five weeks at the height of the Brexit crisis was found unlawful.

The UK Supreme Court agreed that it is the prerogative of the Prime Minister to advise the Crown to prorogue parliament, but it also held that “a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

In Mauritius in the case of Paul Berenger against the then Speaker in 1999, the full bench of the Supreme Court (Pillay CJ, Yeung Sik Yuen SPJ, Matadeen J) held that it was permissible for the Court to determine “the existence of a parliamentary privilege but [it] will not inquire into its exercise unless it results in a breach of the Constitution”.

The Learned Judges went on to underline that this legal principle was in line with the practice obtained in Common law countries governed by a Westminster Constitution. The full bench of the Supreme Court turned down the application, after reaching the conclusion that the Applicant had no constitutional peg to hang his complaint.

The words of the Judges were: “Had this Court been satisfied that the alleged breach of the Standing Order could give rise to an alleged breach of the Constitution, then this Court would have had jurisdiction to determine the constitutionality of the disciplinary measure taken by the National Assembly and would not have been prevented by section 3 of the Act from doing so since no act of the National Assembly which is not sanctioned by the Constitution is allowed to stand”.

* Does this mean that the courts in the Mauritian context can overrule Parliament?

Maybe the answer is to be found in what the Supreme Court had to say in a case of Mahen Utchanah against Paul Berenger in 1998. Judges Bernard Sik Yuen and Vinod Boolell observed:

“The all-important words ‘subject to this Constitution …’ appearing in both sections 45(1) and 48 of our Constitution should neither be overlooked nor minimised. In Jugnauth v. Daby in 1990 the then Prime Minister moved the Court for a declaration on certain rulings given by the then Speaker. No less than a Prime Minister and Leader of the House invoked the aid of the Court when it appeared to him that the very person who presides over the Assembly was going to clog the machinery of Parliament.”

In the same case the Judges held that “Parliament may hide neither behind the cloak of privilege or immunity nor behind an 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 the boundaries set by the Constitution.”

* What about Parliament overruling the courts? Is that possible?

That would be possible, but the courts would frown on this. There is one example when Parliament sought to legislate to overrule a judgment of the Supreme Court in 1982. The Court struck down that piece of legislation as being unconstitutional, and Sir Maurice Rault stated:

“I hope that Parliament will never again resort to such an ill-advised piece of legislation. In our country, which has no army, the stability of the Government does not depend upon force, but upon the consensus of the people. And that consensus itself derives from confidence in the rule of law. The rule of law is the citadel which guards the people against despotism. It is equally the citadel which guards Government against anarchy. If any part of the wall crumbles, the enemy is free to widen the breach, and the citadel is lost. If Government itself, by usurping a judicial function to which it has no right, undermines the rule of law, it destroys the very foundation upon which it is built.”

* Published in print edition on 25 February 2022