A REFLECTION ON ITS USE IN MODERN DEMOCRACIES : Prorogation in Mauritius

In the case of Mauritius the power of the President to prorogue the House is derived from section 57 of the constitution and its effect is defined in section 9(2) of the Standing Orders of the National Assembly. It is to be noted that the President MAY, and not SHALL, on the advice of the Prime Minister, prorogue Parliament. This implies that the President has the option of turning down the request of the Prime Minister to prorogue Parliament. This provision protects the President from the risk of being dragged in partisan issues. So far, there is no known case of a President turning down the request of a Prime Minister to prorogue Parliament. It is important to note that just like in the case of Australia prorogation or its effect is not constitutionally specified or even defined.
One may be left to wonder how the President should be feeling when the supreme body of the land, of which he is part and parcel, is not sitting for an inordinately long period, thus depriving citizens of this country of their legitimate right of being represented by their elected representatives. It should be remembered that Parliament constitutes of the President and the National Assembly.
Just like in other Commonwealth jurisdictions prorogation has aroused a lot of controversy in Mauritius.  The fact that there is no legal obligation for the Prime Minister and the President to specify when Parliament will be summoned anew may open the door for abuse. It also allows Parliamentarians and the public to impute motives to the Leader of the House even though he might have been motivated by genuine concerns.

The way forward
To prevent prorogation from being misused for partisan purposes, several measures have been advocated by prominent international scholars and political observers throughout the Commonwealth jurisdictions.
Some of them have proposed its abolition, purely and simply. Mr Bret-Walker, a leading Australian lawyer, is of opinion that prorogation should be abolished as no justifications could rationalise the fact that the executive is permitted to evade parliamentary scrutiny.  The main idea is to emulate the Australian Commonwealth Parliament and effectively link sessions to Parliament so that there is only one state opening and one prorogation.
A less radical proposal is that Parliament should fix its own schedule in accordance with a constitutional and statutory time table, so as to avoid parliamentary insecurity and potential arbitrary use of prorogation. By fixing the length of sessions in a statue, the whole process is regularised and is removed from the hands of the Prime Minister and President.
 Another option is to introduce a legislation limiting the period during which the Prime Minister can advise the President to prorogue Parliament.
It has also been suggested that the Lok Sabha practice of prorogation be followed. In the Indian Constitution there is a special statutory provision that a bill shall not lapse with prorogation. Under Article 107 (3) of the Constitution of India, bills pending before the House are saved from lapsing. This means that prorogation has no effect so far as that bill is conceived and therefore bills before select or joint committees are also protected. When referring to a bill it is meant all stages of the bill. The Select Committee before which a bill is referred to can attend to its functions even when the House is prorogued because prorogation has no effect on the pendency of a bill. With regards to motions, resolutions, amendments and business pending before Parliamentary Committees, the Rules of Procedure provide that they do not lapse on prorogation and that they are carried over to the next session and that the committees should continue to function notwithstanding such prorogation.
Lastly to remedy parliamentary insecurity it has been proposed that before Parliament is prorogued a motion to that effect should be debated and adopted by the House itself. This could embody the modern philosophy of responsible government.


Commentaires

C'est maintenant (après l'échec de l'alliance PTr-MMM) que Alan Ganoo, qui signe son article comme "Former Speaker, Former Attorney General, Chairman of Public Accounts Committee until prorogation" et qui est depuis très longtemps l'assistant politique de Bérenger, trouve la nécessité d'écrire sur la prorogation du Parlement. Pendant tout le temps de la traction (koz-kozé) d'une alliance avec le Parti Travailliste par son leader Paul Bérenger et que Ganoo a toujours soutenu, pourquoi n'avait-il pas jugé nécessaire d'écrire à ce sujet? Son leader considère le peuple de Maurice comme "admirable" et lui il nous prend pour des "imbéciles". Nous sommes ni 'admirables', ni 'imbéciles', nous savons que les politiciens sont de menteurs et malhonnêtes, et nous saurons règler leurs comptes le moment venu. Déza, Bérenger fine manz feyaz enkor ène kou: personne pas fine swiw li pour manifester, pou réouvertir National Assembly. Oportinis kouma Ganoo, ena boukou dan pays.

Oh! A big yawn! And in which Republic does its constitution provide for prorogation through unconfessed koz koze between a Prime Minister and the leader of the opposition? Banana!

ALAN GANOO, Former Speaker, Former Attorney General, Chairman of Public Accounts Committee until prorogation and middleman aka agwa for a PTr-MMM alliance.