National Assembly│Koonjoo-Shah v. Bérenger: can a minister refuse to answer a question?

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What Kalpana Koonjoo-Shah (R.) did to Joanna Bérenger in Parliament this week is a repetition of a tactic the MSM used against MMM leader Bérenger back in 1994. The gender equality minister flatly refused to answer a question about her ministry fielded by the MMM parliamentarian.

What Kalpana Koonjoo-Shah (R.) did to Joanna Bérenger in Parliament this week is a repetition of a tactic the MSM used against MMM leader Bérenger back in 1994. The gender equality minister flatly refused to answer a question about her ministry fielded by the MMM parliamentarian.

The controversy over MP Joanna Bérenger’s post on social media being fuelled by the government has now made its way into the National Assembly, with gender equality minister Kalpana Koonjoo-Shah refusing to answer her parliamentary question. Can a minister refuse this parliamentary procedure? And why is this MSM tactic familiar ground for the MMM?

  1. Refusing to answer a parliamentary question…

The government has been conducting a campaign against MMM MP Joanna Bérenger over a social media post criticising the prime minister, Pravind Jugnauth. With the government eager to spin this as a communal issue, bringing aboard socio-cultural organizations, this week it brought this campaign into the National Assembly. On July 19, Joanna Bérenger put a question to the minister of gender equality and family welfare, Kalpana Koonjoo-Shah, over whether her ministry would push for the ratification of the Southern African Development Community’s protocol on gender and development as recommended by the SADC’s Country Profile 2021-2027.

What was supposed to be a relatively tame parliamentary question on a fair bit of bureaucratic legalese soon got derailed when minister Koonjoo-Shah flat out refused to answer MP Bérenger’s question. “The government is accountable to parliament, and through parliament to the people. And this accountability is exercised through parliamentary questions,” explains ex-president and former speaker of the National Assembly Kailash Purryag, “therefore a minister refusing to answer a question is undemocratic and smacks of arrogance. A minister has to be accountable to parliament in the way that they run their ministry.” Asking a minister questions in parliament is one of the few ways that an over-mighty government in the Mauritian political system can be kept in check. “We have inherited the notion from the UK that civil servants are supposed to work in anonymity; therefore, civil servants are not directly accountable to the National Assembly,” says senior law lecturer at the University of Mauritius Rajen Narsinghen, “but if civil servants are not accountable to parliament, who is? It’s the ministers that are directly accountable in the way that the executive functions.”. When ministers refuse to answer questions, or pick and choose who they feel accountable to in the National Assembly, that poses an obvious problem for the system.

The first problem with Koonjoo-Shah’s refusal to answer a question is the reason (or lack thereof) she put forth. Within parliament, referring to Joanna Bérenger supposedly-controversial facebook post, Koonjoo-Shah said, “With utmost respect of this House, until this member (Joanna Bérenger -ed.) tenders her unconditional apologies to this entire nation…”. And that was that. “What was the reason that the minister did not answer the question?” asks Purryag, “a minister can refuse to answer a question, for instance, when it concerns a matter of national security. But what is the reason in this case?” The gender equality minister’s refusal to field a question from the MMM MP, is the wrong way of addressing the issue, says Purryag. “If the minister felt that the MP was out of order, then just ask the speaker to ask the parliamentarian to withdraw those words, or raise a point of order. This is the way that the standing orders say such issues should be resolved. But if a minister refuses to answer over any flimsy reason, then that is a violation of parliamentary democracy.”

But the problem goes further than that. Within parliament, Koonjoo-Shah went on to add that the MMM parliamentarian, “has no moral right to sit in this House”(sic). Having a government minister declare who can or cannot be a parliamentarian is an obvious problem. “Who is she to say who can or cannot sit in parliament?” says Purryag, “this is something that only the Supreme Court can rule on.” Section 34 of the Constitution spells out quite clearly who cannot sit in parliament: civil servants, businessmen having contracts with the state and not declaring it, people declared bankrupt or legally of unsound mind, an election officer or anybody with a death sentence or with at least a 12-month prison sentence handed out by any court in the Commonwealth. None of these, of course, apply to the MMM MP that Koonjoo-Shah deems unfit to sit in parliament. “If you have a problem or a score to settle outside parliament, settle it outside parliament,” says Narsinghen.

«When ministers refuse to answer questions, or pick and choose who they feel accountable to in the national assembly, that poses an obvious problem for the system.»

  1. The spirit of the constitution v. the reality

One of the problems with Mauritius’ parliament is how it has imported parliamentary rules (and limitations) from the UK, but not the attitude as to how that institution should function. Let us take what the deputy speaker Zahid Nazurally had to say about Koonjoo-Shah’s refusal to answer a question. In his ruling, Nazurally told Koonjoo-Shah, “Hon. minister, according to Standing Orders 21 and 25, you are under duty to reply and the reason you have put forth for not replying is not a valid reason that holds ground under the Standing Orders.” So can a speaker force a minister to answer a question from the opposition, when the minister has given no good reason for refusing to answer? This question was answered by Nazrually’s ruling itself. “However, Standing Orders also do not allow me to insist upon you to answer the question. In these circumstances, if you are maintaining your position not to reply, I cannot force you to reply. That is my position.” It’s a ruling that Purryag says is valid, “the speaker has no right to compel a minister to answer a question. When the speaker ruled that the reasons given by the minister were not good, that is the end of that matter. It’s for the public to judge now.”

But, says Narsinghen, there is what he terms to be a “small contradiction” in the way that parliament’s rules have been formulated. Whereas section 25(4) of the Standing Orders states that “an answer to a question cannot be insisted upon if the answer is refused by the Minister,” section 25(1) says that “a question shall be answered by laying an answer on the table of the Assembly, unless the member asking the question shall, in the notice of the question, state that he or she requires an oral answer.” The use of the word ‘shall’ in 25(1), says Narsinghen, means that the latter section cannot be read on its own: “In my view, you cannot just read section 25(4) literally while ignoring section 25(1); there is a small contradiction here. The problem is that the rules of parliament themselves, aside from a few cosmetic changes in the 1990s, have remained unchanged for so many decades. This is important because under our constitution, parliament is a mere legislative body; it’s an organ for accountability and it’s supposed to be a superior authority to the government and the executive.”

With the wording of our parliament’s rules, and just how much leeway ministers have in refusing or dodging questions, while in the UK the same rules are there, the outcome is fundamentally different. “Our ministers fail to understand the spirit of the constitution and do not give the same importance to agreed-upon parliamentary practices as they do in the UK, where a lot of what happens in parliament is not spelled out in rules, but practices that all political parties nonetheless follow. The result is that in Mauritius, parliamentary rules are being perverted and there is a failure to understand the history of the system of parliamentary democracy,” says Narsinghen.

Here is an example of how in the UK, attitudes to ministerial accountability go far beyond the strict minimum spelled out in parliamentary rules: while Erskine May (considered the essential guide to parliamentary practice) allows ministers to refuse questions, in 1996, both houses of the UK parliament agreed to implement a House of Commons Public Service Committee recommendation to institute a code for parliament which stated, “In the opinion of this House, the following principles should govern the conduct of ministers of the Crown in relation to parliament: ministers have a duty to parliament to account, and be held to account, for the policies, decisions and actions of their departments… it is of paramount importance that ministers give accurate and truthful information to parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead parliament will be expected to offer their resignation to the prime minister; ministers should be as open as possible with parliament, refusing to provide information only when disclosure would not be in the public interest”. This was something not mandated by the parliamentary rulebook, but something that all political parties within parliament at the time voluntarily undertook to uphold, with the government – not the courts or the speaker – expected to uphold these rules on their own ministers.

  1. Déjà vu

Regardless of parliamentary rules or the logic of Koonjoo-Shah’s tactics within the National Assembly, politically, this is familiar territory for the MMM. The last time that the MSM had used such a strategy within parliament against the MMM was in 1994, after a 1991 coalition between the two parties had fallen apart a year earlier, and the MMM had gone into the opposition with the Labour Party. And at that time, it was used against Joanna Bérenger’s father, MMM leader Paul Bérenger.

The leader of the Labour Party, Navin Ramgoolam, since the 1991 elections had run a campaign arguing that those elections had been rigged by the MSM. So, when the MMM left the MSM to join the Labour Party in the opposition it posed a problem: it could not denounce the elections that brought it to power alongside the MSM as rigged, while at the same time it could not simply dismiss the narrative crafted by its new opposition ally as nonsense. So, it attempted to play it down the middle: in a joint press conference with Ramgoolam, Paul Bérenger stated that “the Labour Party is convinced that the elections of 1991 were rigged. We in the MMM reject this claim. However, we agree there have been some minor malpractices but there is no proof that there has been massive fraud”.

It was a conundrum that the then MSM government headed by Sir Anerood Jugnauth sought to exploit within parliament. In response to the MMM’s attempts to reconcile its alliance with the Labour Party with Ramgoolam’s allegations about the 1991 elections, Jugnauth argued that such a tactic was nothing less than Paul Bérenger arguing that his own election to parliament was fraudulent and demanding that the MMM leader resign from his seat in parliament. Within the National Assembly, this tactic against the MMM leader took the form of government ministers boycotting the MMM leader by systematically refusing to answer his parliamentary questions. The Labour-MMM opposition bloc denounced this MSM tactic as making a mockery of parliamentary democracy, while the speaker at the time – Iswurdeo Seetaram – (just as the deputy speaker today) argued that parliamentary rules made it impossible for him to intervene and force ministers to answer Paul Bérenger’s questions. For a time, it seemed impossible to break through this tactic: speculation was rife that the opposition MPs would resign en bloc, while within the MMM, Paul Bérenger briefly flirted with the idea of resigning on his own to spark a by-election and get over the MSM’s parliamentary tactic.

In the end, it was neither the government lifting its boycott, nor a unilateral resignation by the MMM leader that solved the issue. On November 29, 1994, while discussing by-elections to fill vacancies at the Port Louis municipality, MPs from the ruling MSM-RMM bloc shouted their demand that Paul Bérenger resign, the MMM agreed but on condition that the RMM’s Jean Claude de l’Estrac (who like Bérenger was elected in constituency No. 19) resigned as well and turn a by-election into a straight fight between the Labour-MMM and MSM-RMM alliances. The session was suspended, as both Paul Bérenger and Jean Claude de l’Estrac went into Seetaram’s office and wrote out their resignation letters from parliament.

When the by-election did take place in January 1995, it saw Paul Bérenger team up with Labour Party’s James Burty David against Jean Claude de l’Estrac and Shirin Aumeeruddy-Cziffra (who had stood as an MMM candidate in No.19 between 1976 and 1991) who had resigned from her posting as Mauritian ambassador in Paris to contest the by-election. Although the PMSD put up its own candidate (Ram Mardemootoo), the result was a win for the Labour-MMM alliance. Just as in 1994, questions and rules of the National Assembly are being used as an adjunct for the heated political climate outside. And if Paul Bérenger had to suffer that tactic back then, today a new generation of the MSM is dusting off and using the same tactic against Joanna Bérenger.

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