Will mass resignation of Opposition MPs allow the government to amend the Constitution? Highly plausible

The Constitution & Parliamentary Majority

Qs & As

By LEX

Following the proposal mooted in some quarters that all Opposition MPs resign from Parliament to somehow impose general elections, there would be no compulsion weighing on the ruling regime and, in fact, the latter may well use its absolute numbers in the House to suit its agenda, including amending the Constitution. The latter remains vague on the exact interpretation to be given to the words “no less than three-quarters of all Members of the Assembly”, those present at that sitting or the totality of those voted in. Lex comments on the hypothetical proposal.

* In the wake of the call for the mass resignation of Opposition MPs made by both Roshi Bhadain and Rama Valayden, Opposition leaders have taken the view that such an initiative would only serve the interest of the Government, since their resignation will allow the government to amend the Constitution on the strength of the resulting three-quarters majority of MPs present in Parliament. Does this sound plausible?

Of course it’s highly plausible, as this depends on the interpretation that will be given to the words ‘all members of the national assembly’. Nothing will prevent the government from giving its own interpretation to these words. The government may well say that ‘all Members’ mean all members present at the time a Bill is being debated.

* The National Assembly website informs us that the ‘President cannot withhold assent to a Bill which amends the Constitution and is certified by the Speaker as having complied with S 47 of the Constitution which lays down that certain amendments must, at the final voting, be voted by not less than three quarters of all the Members of the Assembly or of two thirds of all the Members, as the case may be’. Does this mean three quarters or two thirds of Members elected or present in the Assembly at the time the vote is taken?

A literal and a logical reading of S 47 of the Constitution would lead one to conclude that ‘all members of the national assembly’ would surely mean all those who were elected at an election. But as the Constitution is not clear on these speculative terms, interpretations will run wild.

* Section 53 of the Constitution in relation to how ‘voting’shall be conducted in the Assembly, specifies in subsection (1) that ‘Except as otherwise provided in this Constitution, all questions proposed for decision in the Assembly shall be determined by a majority of the votes of the members present and voting…’ Doesn’t it therefore logically follow that any Bill that requires a majority of either three quarters or two thirds requires the presence of that specified majority of Members for the Bill to go through?

A normal piece of legislation that does not relate to the Constitution requires a simple majority of the members of the assembly. You will notice that section 53 uses the term “members present and voting” whereas section 47 uses the terms “all members of the National Assembly”. Would “all members” have the same meaning as in section 53? That remains to be seen.

* Abstentions and absences are excluded in the calculation of a two-thirds vote – or a three quarters or even a simple majority vote for that matter. This as well requires Members to be present at the time the vote is taken, right?

There have been instances in the past when Bills have been passed with members present even if their number was less than the number of returned candidates at an election. The majority party may well argue, insofar as section 47 is concerned, that ‘all members of the assembly’ means members present at the time of voting.

* Why is it that the highest office in the land – the President of the Republic – is voted into or suspended from office, as prescribed by Section 30(2) of the Constitution, by a simple majority and thereafter a tribunal instituted for investigations — the same holds true for the proclamation of a state of emergency in case ‘democratic institutions in Mauritius are threatened by subversion’ — whereas a ‘Bill… to prescribe the offences related to terrorism or drug offences [Section 5 (a) – Protection of right to personal liberty] or to amend or repeal such an Act’ as well as ‘with regard to the keeping of a custody record and video recording in respect of the detention of any person for a drug offence’ requires ‘not less than three quarters of all the members of the Assembly’? We seem to be more mindful about drugs and terrorism than the President of the Republic, isn’t it?

The framers of the constitution rightly provided that matters concerning fundamental rights should not be played with. Can you imagine if matters relating to fundamental rights, the office of the DPP, the judiciary could have been amended by a simple majority, what chaos that would have brought to the country? Today we would be finding ourselves in an official dictatorship.

As regards the election of the president or Vice President by a simple majority, this is an aberration. Both should be elected by a two-thirds majority.

* Is there a case for a review of the specified level of support required for the passing of laws by our Parliament?

Not really. The Bills that require a weighted majority are already specified in the constitution. If all Bills require a weighted majority, there may well be a breakdown in the workings of the government machinery.


* Published in print edition on 31 December 2021

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