On the 12th May 2014, the Parliament of the Republic of Mauritius lived its 20th prorogation since independence. Much has been said lately about prorogation. This term is not a common one. Therefore it is understandable that the lay man finds it unintelligible and nebulous.
In fact ‘prorogation’, which is simply a parliamentary mechanism, terminates all business pending before the House until Parliament is summoned again. To fully understand the term prorogation, it is important to undertake a brief incursion in our parliamentary system.
The Mauritian parliamentary system is based on the Westminster model. The first provision of the Standing Orders of the House stipulates in general that when our standing orders are silent on certain matters, we should adopt the practice of the UK House of Commons.
In Mauritius the term ‘prorogation’ is referred to in three specific instances only:
(1) Section 57 of our Constitution, referring to the power of the President on prorogation and dissolution of Parliament stipulates that ‘The President, acting in accordance with the advice of the Prime Minister MAY at any time prorogue or dissolve Parliament’ and
(2) The interpretation section of our standing orders make reference to the term prorogation whilst defining the term ‘session’.
(3) In section 9(2) of the Standing Orders of the National Assembly, the effect of prorogation is defined as suspending all business until Parliament is summoned again. The life of all committees, sessional or otherwise comes to an end.
Prorogation in other Commonwealth jurisdictions
In the absence of a precise definition of the term, we have to seek guidance from the UK and other Commonwealth jurisdictions to have a clearer view of the meaning and effect of prorogation. From there, we may have a better insight of its application and how in some cases it can result in an abuse of our basic democratic principles.
Historically the power of prorogation originates from the British monarchy, where it was one of the prerogatives of the monarch, who had recourse to this tool when he no longer needed the advice of Parliament or to dispense with Parliaments that turned out to be ‘rebellious’. In those days, Parliament had only an advisory role and the Monarch would reign according to his wishes. At that time governance in Britain had its source in Royal prerogatives. Over time many of these prerogatives were extinguished by Parliament and laws were enacted to limit the King’s power. With the advent of a new democratic culture it was recognised that more democratic principles must inform all the aspects of the constitution. Some of the prerogatives came to be exercised collectively or individually by Ministers. Nonetheless the Monarch retained three distinct royal prerogatives – to summon, to prorogue and to dissolve Parliament.
Let us now look into the known effects of prorogation in the British parliamentary system. According to Erskine May, the effect of prorogation is to suspend at once all business including committee proceedings until Parliament is summoned again. This is the generally accepted view. This means that all proceedings before the House and Committees are quashed and must be reintroduced when Parliament is summoned again. The sittings of Parliament are put to an end and all proceedings pending at the time are terminated. Every bill must be introduced afresh. Paradoxically, if we go by the definition of Erskine May, committee proceedings are suspended but no mention is made on whether committees subsist or not during prorogation.
When we accept the view that during prorogation, the House is not sitting and committees cannot continue with the work that has been entrusted to them, the result is that the executive cannot be brought to account to the legislative. Are we not then undermining the proper functioning of a democratic system?
It should be borne in mind that during the prorogation period (termed inter-session in the parliamentary jargon) the government is carrying on business as usual – e.g. entering into large procurement contracts or incurring government expenditure without any checks.  This parliamentary measure has the effect of seriously undermining Parliament’s role in holding the executive to account. As a consequence Parliament could fail in fulfilling its primary role of overseeing the actions of the executive.
The question of the effect of prorogation in other jurisdictions has also been subject to many controversies. Canada provides us with examples of how prorogation has been resorted to for partisan purposes and more particularly to avoid accountability to Parliament.
As far back as 1873 the first controversy surrounding prorogation arose. Sir John Macdonald wanted to prorogue Parliament to stop the work of the committee looking into the Canadian Pacific Railway scandal. The Governor General who was advised by the Premier to prorogue Parliament decided to attend the cabinet meeting, where prorogation was to be discussed. He consented to only a ten-week prorogation along with the appointment of a Royal Commission of Inquiry into the Canadian Pacific Railway, which would report to Parliament after 10 weeks, which it did. Following the report of the Royal Commission of Inquiry Mac Donald was censured and had to resign.
There have been other cases where different Prime Ministers elected democratically resorted to prorogation in order to avoid a defiant Parliament, which sadly reminds us of the monarchical practices.
In 2002 Prime Minister Jean Chrétien advised the Governor General to prorogue Parliament in order to avoid the tabling of a report of the Public Accounts Committee regarding the Sponsorship Scandal involving his party. After Parliament was summoned investigations continued and Prime Minister Chrétien had to resign. Another example took place in December 2008. Prime Minister Harper fearing that he may be defeated by a motion of no confidence recommended to Governor General Michele Jean that Parliament be prorogued. After two hours of consultation with constitutional experts and reflection, the Governor General accepted the recommendation of the Prime Minister but imposed the condition that Parliament would reconvene soon and when the Commission did, cabinet would present a budget which would tantamount to a motion of no confidence in case the latter fails to secure a majority of votes for the budget.
Prime Minister Harper relapsed once again in 2009, when he advised the Governor General to prorogue Parliament for the purpose of keeping Parliament in recess for the duration of the XXI Olympic Winter games to be held in February 2010. It was suspected that the move was a way for him to avoid ongoing investigation into the government’s handling of the Afghan detainees’ affair.
The Canadian experience of prorogation is an interesting illustration of how democratically elected Prime Ministers can have the same inclination to flout the dignity and supremacy of the legislature just like a despotic monarch.
The Australian experience of prorogation can be a source of inspiration for a new approach on the resort of prorogation to Parliament in Mauritius. The effect of prorogation has been the subject of a rigorous debate as it is not constitutionally specified. It is commonly accepted that prorogation ends the current session of Parliament until the next session. This means that all business including proposed legislations will have to be renewed once Parliament is summoned. The disagreement arose on whether prorogation means that committees and inquiries cease to function and are only renewed when Parliament is summoned anew. This question of whether committees can sit and function during prorogation has been a source of intense contention in Australia.  
A significant disagreement took place on this question between the Clerk of the House and the Crown Solicitor in New South Wales in 1994. The Clerk was of the view that committees could continue to meet during prorogation while the Crown Solicitor was of a different opinion on the ground that:
‘a committee exists, and only has power to act as far as directed by an order of the House which brings it in existence. The committee is subject to the will of the House and therefore the work of every committee comes to an absolute end with the close of the session’
The Clerk’s refutation of this interpretation was based on the concept of modern responsible government in New South Wales. She highlighted that the Crown Solicitor was interpreting prorogation from a very limited lens, which was restrictive of the actual powers of the council. Her argument was based on the fact that the modern notion of responsible government is such that Parliament is seen as performing beyond its primary role of passing laws.  Instead it should be seen as having the important function of questioning and criticising government on behalf of the people and to secure accountability of government’s activity. She considered that holding government accountable through questioning and criticisms is the very essence of the concept of responsible government.
Prorogation may be a necessary action in certain specific cases, e.g. of national interest, where all MP’s and government have to focus on a matter of public interest such as national security. However the Clerk of the House argued that:
‘While the traditional understanding of prorogation was that committees may not meet, a contemporary reading of the system of responsible government is that the council, through its standing committees, must be able to exercise its constitutional role of scrutinising the actions of the executive government’ . The Clerk’s argument mainly brought forward how under contemporary responsible government, standing committees must have the power to conduct inquiries after prorogation as a matter of reasonable necessity.’
The Clerk’s argument was reinforced by the case of Egan v/s Wills which was heard in the New South Wales High court. It was recognised in this specific case that
‘A system of responsible government traditionally has been considered to encompass the means by which Parliament brings the executive to account so that ‘the executive’s primarily responsibility in its prosecution of government is owed to Parliament’.
The divergence of views on the effect of prorogation was so acute that on several occasions a series of acts of Parliament termed Parliamentary Committees Enabling Acts had to be passed to enable certain committees to sit during prorogation.
Likewise in 2011, the House New South Wales introduced the Constitution Amendment (Prorogation of Parliament) bill to prevent Parliament to be prorogued too early before an election. According to the mover of the bill, Honourable Gallagher, government was taking action to ensure that ‘Prorogation cannot be abused in the future by a government seeking to avoid proper scrutiny by Parliament before an election’. He also contended that this bill demonstrated government’s commitment to improve the accountability of the executive.