This week the speaker of the National Assembly Sooroojdev Phokeer handed out a suspension against the Labour Party's Arvin Boolell for an interview to Radio Plus. The latter is looking to the courts to block the move. The question now is: has Phokeer crossed a line and got the rules wrong?

Inside and outside parliament

The speaker of the National Assembly Sooroojdev Phokeer announced this week that he was handing out yet-another suspension against the Labour Party's parliamentary leader Arvin Boolell. The difference this time around was that it was not for something Boolell had said in parliament, but for an interview that he gave to Radio Plus on March 28, criticizing Phokeer's handling of the National Assembly. So the question is, can Phokeer punish a parliamentarian for something said outside the National Assembly? Not so, according to Rajen Narsinghen, senior lecturer in law at the University of Mauritius, "When you look at section 49 of the standing orders (that deals with suspensions from parliament -ed.) of the National Assembly and its wording, it's clear that it refers to anything that happens within the precincts of parliament."

This is backed up by constitutional lawyer Milan Meetarbhan: "As a general rule we have to distinguish between what happens inside and outside parliament. For anything happening inside, there are rules governing what happens there; but if an MP says something outside parliament then you can go for criminal or civil defamation or if the house has been brought into disrepute, then there is the possibility of referring the matter to the Director of Public Prosecutions. Theoretically, it's a clear picture; so using rules meant for the proper proceeding of parliament to sanction an MP for something said outside does give rise to serious questions."

An old debate

One of these questions is just how far the powers of a speaker to punish an MP go? For his part, Phokeer can point back to history to justify his move, and another time when relations between an opposition and a speaker hit rock bottom. After the 1983 elections, the government of Sir Anerood Jugnauth made Ajay Daby the speaker of parliament. There was a lot of bad blood between the opposition MMM and Daby, who had been elected as a candidate of the MSM-Labour-PMSD bloc in opposition to the MMM-MTD-FTS coalition. This was before changes to parliamentary rules in 1995 allowed for non-elected people to become speakers, starting with Sir Ramesh Jeewoolall.

By 1984, the opposition MMM and Daby began a series of clashes after the opposition accused Daby of rejecting its parliamentary questions out of hand to protect the government, while Daby insisted he had the power to reject questions or motions that he deemed inappropriate. In meetings outside parliament, the MMM began calling Daby a "dictator" that openly favoured government MPs while taking a harder line with them. To quell the storm of criticism against the National Assembly, the government came up with an amendment to the standing order which read: "Nothing in these orders shall prevent Mr speaker from dealing with any member of this house or of the public, in a manner he thinks fit, for any breach against the assembly or member thereof, committed outside this house." What this amendment did was dramatically escalate the powers of the speaker to punish MPs not just for what happened inside, but also outside parliament. The MMM deplored the new amendment as "a big threat to parliamentary democracy and the immunity of MPs".

It wasn't long before Daby exercised his new-found powers. That same year, an innocuous exchange took place inside parliament over the alleged decrease of unemployment relief payments from Rs27 million to Rs17 million. MMM MP Jean Claude de l'Estrac accused a minister of lying about the reduction of payments, leading to a heated exchange between Bérenger (then-leader of the opposition) and the then-deputy speaker Yousuf Mohamed, culminating with Bérenger telling Mohamed to "go to hell!" The MMM leader was suspended until the end of the session. Reacting to his suspension, Bérenger held a press conference where he accused parliament of crossing a line: "Every week parliamentary democracy is being weakened. Since 1976, no leader of the opposition has ever been suspended or ordered out," adding, "We consider it our duty to raise the alarm now; it is parliamentary democracy, the legislative assembly that institution for expressing the will of the people that is under threat."

Angered by Bérenger's press conference, Daby made the following statement: "My position as custodian of the dignity and privileges of the legislative assembly commands me to act with firmness so as to prevent this house, whose elective constitution borders on a century, from falling into ridicule and disrepute - a situation if allowed to continue would be beyond repairs"(sic). The speaker then sent a press cutting of the press conference demanding that Bérenger confirm or deny what he was reported as saying at his press conference. The latter simply replied, "No comments." Prime Minister Sir Anerood Jugnauth then moved that Bérenger be suspended for two sittings for what he had said at the press conference. The MMM leader was suspended with the MMM walking out of that sitting in protest. Phokeer can point to this episode to show that, not only is an MP being sanctioned for something said outside parliament, something that has happened before, but so is the length of the punishment: Boolell - like Bérenger back then - was suspended for two sittings.

Post-1995

This argument is not as straightforward as it seems. In 1995, a new set of standing orders came into force, replacing the old one. Gone was the straightforward language about the speaker being able to punish MPs for something said outside parliament. Instead, it was replaced by something vaguer. Under section 49(8), which Phokeer relied on, "nothing in this order shall be deemed to prevent the Assembly from proceeding against any member for any breach of order not specified herein or from proceeding in any other way it thinks fit in dealing with the breaches of order herein mentioned". And section 77, which states that "the speaker shall have power to regulate the conduct of business in the Assembly in all matters not provided for in these orders".

If Phokeer can point to precedent as justification for his move against Boolell, the Labour Party MP will have to argue that Phokeer's interpretation is a stretch too far of the 1995 version of the standing order that does not specifically mention anything about the speaker's powers extending outside parliament. "Let's say that an ordinary person makes a statement outside parliament; you are subject to the law. But as an MP, you may now be subject to the law as well as action from parliament itself in addition. Is that right?" asks Meetarbhan.

Why not contempt of the Assembly?

Another question now rises: why did the speaker not proceed on the matter as if it were a contempt of the National Assembly? Certainly, in his view it did constitute that. "I reiterate my view that those words and expressions are in fact outrageous and contemptuous of the chair and constitute a contempt of the assembly and a serious breach if its privileges", but he added in his statement on April 11, that he did not go ahead with it because "so far, I have not received any privilege complaint and therefore, the chair is not in a position to act under the provisions of the law relating to contempt of the Assembly".

Why didn't any government MP raise a privilege complaint? After all, they had plenty of time - the radio interview took place on March 28, and parliament was meeting on April 11. The reason is not only would that have taken the matter outside of the speaker's control, "he would have to refer the matter to the DPP and then substantiate his case there," says Narsinghen, but also that prosecutions for contempt of the Assembly have a poor track record of success in Mauritian courts. The only successful prosecution of contempt of the assembly being way back in 1957 in the case of Coralie where a publisher of the newspaper 'L'Épée' was ultimately sentenced to a fine of Rs1,300 for carrying an article criticising members of the legislature.

Despite being on the books, it has rarely succeeded since then. In his preliminary report in 2013 on reforming media laws, Geoffrey Robertson argued that "Coralie was a case in the 1950s when human rights and free speech principles were not fully developed. Today, they should protect citizens against jail and fines merely for criticizing parliament, even if their criticisms are wrongheaded or malicious". In his report, Robertson counselled, "In my view, the court's power to jail critics for contempt of parliament should be abandoned and MPs should be content with the opportunity to sue their critics for defamation or breach of privacy."

In more recent times, although the threat of a prosecution under contempt of the Assembly has been brandished from time to time - in June 2022, parliament sent a file to the DPP accusing Stephanie Anquetil of the crime in statements to l'express in April 2022, Phokeer said that leader of the opposition Xavier-Luc Duval's comments in 'Le Mauricien' "may amount to a contempt of the Assembly", and in July 2021, when a Supreme Court user tried to serve a summons to Ivan Collendavelloo in parliament -, none of these resulted in prosecution. "Cases have been referred to the DPP, but as far as I can remember, there has been no contempt of the Assembly prosecution after Independence," recalls Narsinghen. Which explains why the government MPs were not eager to turn this into a contempt of the Assembly battle, but rather leave it to Phokeer to react with a straightforward suspension.

The injunction

But what of the injunction that Arvin Boolell managed to secure on Friday to temporarily block the effect of the two-sitting suspension? "There are four criteria that judges use to decide whether or not to grant an injunction, which is an exception rather than the rule," argues Narsinghen. "In this case it shows that the judge did not consider the matter to be frivolous". Boolell, of course, currently has another case making its way through the court contesting an earlier suspension. Now with the injunction secured, Boolell will have to come up with a main case to lodge in court to contest this new suspension. "In general, there may be irreparable damage to an MP who says he has been wrongly suspended; so the court should generally provide such an injunction until the courts themselves decide the issue," says Meetarbhan.

There is some precedent showing how such a case might proceed. Back in 1999, Paul Bérenger was contesting an indefinite suspension handed out to him by then-speaker Sir Ramesh Jeewoolall. Like Boolell now, Bérenger back then first went for an injunction to block the move and managed to get former Supreme Court judge Paul Lam Shang Leen to give an injunction. That is, until Bérenger had to come up with a main case. In that case, however, a full bench of the Supreme Court subsequently ruled that it could not get involved in parliamentary business unless an MP's constitutional rights were being violated - which Bérenger did not argue, his case was that parliament did not follow the proper procedure in coming up with the suspension.

Like Bérenger, Boolell's initial victory in securing an injunction in this new suspension is merely the first step; now he will have to come up with a main case to show how his constitutional rights have been violated as an MP by Phokeer getting the 1995 version of the standing orders wrong, while Phokeer will have to show how what he has done is not such an aberration in the grander sweep of Mauritian parliamentary history. Ultimately, it will be up to the courts to decide on this bigger question. Out of all this, we must remember, Meetarbhan points out "that all these rules are there to protect parliament itself and not an individual".