Mauritius: Angus Road and parliament - Was Phokeer allowed to change the PNQ?

12 November 2020

The Angus Road scandal took on a new twist in the National Assembly on Tuesday with the Leader of the Opposition Arvin Boolell arguing that the Speaker of the National Assembly Sooroojdev Phokeer changed his PNQ, not allowing him to ask whether the Prime Minister Pravind Jugnauth broke the Financial Intelligence and Anti-Money Laundering Act in payments to the Bel-Air Sugar Estate. Was Phokeer allowed to do this? And does it set a new, dangerous precedent in the already troubled relations between Phokeer and the opposition?

The Angus Road saga hit a new twist on Tuesday with the Leader of the Opposition Arvin Boolell's Private Notice Question (PNQ) being changed to chuck out his question about whether or not there was an investigation into whether the Prime Minister Pravind Jugnauth broke the Financial Intelligence and Anti-Money Laundering Act (FIAMLA) that, at the time the payments were being made, limits cash payments to Rs350, 000. Boolell came armed with five receipts allegedly paid by Jugnauth to the Bel Air Sugar Estate for cash payments ranging between Rs500, 000 and Rs1 million (totaling Rs4 million) between February and November 2002 in connection to the Angus Road affair. Boolell refused to ask the version of the PNQ that the Speaker of the National Assembly Sooroojdev Phokeer came up with, abandoning the focus on possible breaches of the FIAMLA entirely.

Phokeer's action breaks new ground in the parliamentary his- tory of Mauritius. So the question is, was Phokeer allowed to change the PNQ in this way? That has legal opinion divided. Alan Ganoo, Minister for Land Transport and Light Rail and himself a former Speaker of the National Assembly between 1982 and 1983, in a press conference, explained that "the Speaker has committed no crime" referring to the Standing Orders of the National Assembly.

According to section 27 of the Standing Orders, "the Speaker shall decide whether a question is or is not admissible... " adding that Phokeer decided to change the PNQ because it infringed on section 40(5) of the Standing Orders which states; "The conduct of the President and the Vice-President of the Republic or the person performing the functions of the President's Office, the Speaker, Members of the 21 Assembly, Judges, Members of Statutory Commissions or other persons engaged in the administration of Justice shall not be raised except upon a substantive motion moved for that purpose". In other words, Phokeer was well within the Standing Orders to not allow the Leader of the Opposition to ask about whether or not there was an investigation into the Prime Minister breaking the FIAMLA in connection to the Angus Road affair.

The problem is that there is a significant difference between simply throwing out a question and modifying it to change its focus entirely. Speaking in general terms, Razack Peeroo, a former Speaker of the National Assembly and former Attorney General, explains to l'express that "a Speaker does have the right to reject a question, not all questions can be accepted legally for example if it is a type of question prohibited in the Standing Orders such as asking a question that's already been answered or if it breaks another law such as the Secrets Act to take an example". But this is about rejecting a question and taking it out of the order paper entirely. Changing a question, on the other hand, and then putting up another version is outside the authority of the Speaker. "The standing orders allow the clerk of the National Assembly to 'sub edit' questions," says Milan Meetarbhan, a constitutional expert who has authored a commentary on the Mauritian Constitution. Indeed, section 21 (5) of the Standing Orders is quite clear, "the Clerk shall have full power to sub-edit questions". This was what Phokeer also insisted on during his exchange with the Leader of the Opposition in parliament on Tuesday.

What kind of 'editing' of a PNQ is allowed?

Now the question arises : so what kind of 'editing' is a clerk and, indirectly, a Speaker of parliament actually allowed to do on a question? Can a Speaker, say, change the focus of a question entirely, as Arvin Boolell claims Phokeer did in the case of his PNQ? "In general principle, no they cannot. By 'editing' what we mean is amending or changing the language of a question to make it more clear or unambiguous, a Speaker certainly cannot unilaterally change even a simple parliamentary question, never mind a PNQ, he has to respect the query of the parliamentarian asking about a particular fact to a minister", Peeroo points out.

Former Supreme Court Judge Vinod Boolell tells l'express that legally it would all boil down to what is meant by the term 'amended'. In his view, "this generally means cosmetic changes that don't fundamentally alter the tenor or substance of a question, this certainly cannot be legally understood to mean giving a blanket license to a Speaker to change parliamentary questions at will, still less to practice a form of censorship behind the back of the Leader of the Opposition, the Speaker has no legal right to act as a censor in the National Assembly, you simply cannot change the substance of a question entirely". A court will be looking at the Standing Orders and go by a strict definition of what 'amended' actually means, he adds.

The question at the root of the problem, according to Peeroo, "is one of fair play and respect, whatever change you make you have to call in the MP and explain the grounds on which the change is being made, such a change cannot just be imposed like that in any case, a Speaker can throw out a question certainly, but he cannot change a question and just impose that".

Senior law lecturer at the University of Mauritius, Rajen Narsinghen, explains that in any case, "a clerk of the National Assembly that is empowered to make cosmetic amendments to a question is supposed to be the chief executive of the National Assembly, the Speaker has no legal authority on this matter and those working at the National Assembly are not, legally speaking, supposed to be at the beck and call of the Speaker or the Prime Minister at any rate".

Is this unprecedented?

One reason for the confused reaction is that Phokeer's action plunges the Mauritian National Assembly into uncharted territory. Ganoo said, at his press conference on Tuesday, that questions had been amended "hundreds of times". But has it ever been done to a PNQ to completely change it? Or is this something new that Phokeer is doing?

"We have decades of parliamentary history so I would not be surprised if previously questions have been amended to correct grammar or for stylistic reasons, but I am not aware of such a case as this, a PNQ being completely changed to drop a line of questioning entirely, happening before" Meetarbhan reflects. And neither does Peeroo; "I don't recall ever having come across a question that was fundamentally changed either when my own term as Speaker or those of others before or since, we may have amended language to make a question more understandable but to change the purpose of a question entirely? That was never done".

So if Phokeer by changing Arvin Boolell's PNQ to pre- vent him from asking whether the Prime Minister Pravind Jugnauth broke anti-money laundering laws to make Rs4 million in cash payments to the Bel Air Sugar Estate is something new and not allowed, is there a legal case to be made in court against Phokeer's action?

"It has been established in Mauritian legal history that the courts can intervene in parliamentary business when a constitutional principle is seen to being breached", Meetarbhan points out. He explains that in Mauritius the principle of the responsibility of ministers before the National Assembly is laid down clearly in the Constitution, "now to what extent the action of a Speaker or a clerk in the National Assembly impinges on this principle of accountability before parliament is yet to be tested in a court". Already, it should be remembered the Supreme Court is looking into a case lodged by Arvin Boolell over Phokeer's refusal to allow him to use his office in the National Assembly to host press conferences.

The issue, Narsinghen says, is that the court in Mauritius tends to have a conservative approach when it comes to what happens in the National Assembly and is generally reluctant to intervene. "Judges are conscious of the separation of powers between the court and parliament and are reluctant to be seen to be interfering in the internal workings of the National Assembly" he notes, which is why few legal challenges to the actions of previous Speakers have succeeded in court, such as the case of Duval versus Seetaram in 1990 or Jugnauth versus Daby in 1991. But some do, such as the case of Navin Ramgoolam in 1993 against an attempt to declare his seat vacant by parliament at the time.

"The argument back then too was that this was allowed by parliamentary rules but it did not work, by analogy what the current Speaker is doing now may also open the way for a similar legal challenge, if the Speaker does something that infringes on democracy or the Constitution the courts can act", concludes Vinod Boolell.

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