BREAKING REJOINDER WHETHER THE PRESIDENT SHOULD RESIGN RE ARTICLE OF MR RAFICK SOORMALLY @ PAGE 9 OF LEXPRESS OF THIS DAY:“Tribune” Rejoinder “Should President Kailash Purryag resign?” In your issue of 26th December 2014, under the above caption the very interesting opinion of Mr Raffick Soormally suffers from a few fundamental issues and I would be obliged if same be published at your earliest to dispel any doubt thereto. I am grateful to the author’s reference to the terms “Office of Conscience” which are terms used in a different context in as much as the provisions of the Constitution of Mauritius which is the Supreme Law of the land assumes the highest normative value in the realm of interpretation. And in this context, it is imperative to examine Section 28 of the Constitution which expressly provides for the office of the President and his Constitutional Powers: 28. The President 1] There shall be a President who shall - be the Head of State and Commander-in-Chief of the Republic of Mauritius; uphold and defend the Constitution and ensure that –i] the institutions of democracy and the rule of law are protected; ii] the fundamental rights of all are respected; and iii] the unity of the diverse Mauritian nation is maintained and strengthened. And therefore, this Constitutional Instrument CANNOT be termed “Office of Conscience” by any stretch. Whether the Present President should resign in the wake of the landslide victory of the Alliance of Lepep? I am in total agreement with the author that in all the circumstances of the case that this decision be left to his ultimate conscience and to his conscience alone. I am alive to the fact that the present holder of office has always been a dire hard Labour Party element and it was during the term of office of the outgoing government that he was appointed as such after he resigned as Speaker of the House. And his election was pursuant to Section 28 (2)(a)The President shall - (i) be elected by the Assembly on a motion made by the Prime Minister and supported by the votes of a majority of all the members of the Assembly; and (ii) subject to this section and section 30, hold office for a term of 5 years and shall be eligible for re-election. And (b) A motion under paragraph, (a) shall not be the subject matter of a debate in the Assembly. I now propose to draw a parallel with the election to the office of President of SAJ in 2003 which aspect of the matter, highly relevant, was not eluded. It was the MSM-MMM government which moved the House for the aforesaid appointment for a term of 5 years. However, the 2005 general elections was won by the Labour,PMSD, MSD,MR etc and the swearing ceremony of the ministers was held on a public road instead of Le Reduit. At which ceremony SAJ was belittled to such an extent that it was inconceivable that he would remain in office and worse, the then Prime Minister breached his constitutional considerations by refusing to confer weekly with the President for some 18 months thereafter, I understood that relations were resumed. WHY DIDN’T SAJ RESIGN FROM OFFICE IN THOSE CIRCUMSTANCES? THIS QUESTION MUST BE ANSWERED BY NO OTHER PERSON THAN SAJ WHOSE FURTHER TERM OF OFFICE WAS RENEWED. And it is very surprising that your author does not refer to the above episode but I do not hold him to task save to remind your readers of the uncalled and outrageous conduct of the then Prime Minister’s willful conduct undermining the highest institution of this Republic. And the conduct so far of the present Prime Minister has been outstandingly commendable. Your author’s suggestion that SAJ “in conscience” resigned from the Office of President in March 2012 albeit for having criticized “Ramgoolam’s government for the degradation of peoples’ lives..” is no answer that President Puryag should tender his resignation. And he refers to the President’s in action following two petitions of a barrister to revoke the then Leader of the Opposition should be a ground for President Puryag to resign. Your author relates to a one off inaction albeit an important one over a lengthy period to call for his resignation. But could President Puryag revoke the then Leader of the Opposition? My own calls to the members of the opposition to move for a vote of censure of the then Leader of the Opposition fell on deaf ears. In order to answer the question, one has to examine the powers of the President under the Constitution and the appointment and removal of the Leader of the Opposition which provisions are set out hereunder. The answer is cateoric No. President Puryag could not revoke the then Leader of the Opposition. I do not propose to analyse the said section which are clear enough for your readers to understand. (1A) Subject to section 64, the President shall, in the exercise of his functions under this Constitution or any other law, act in accordance with the principles set out in subsection (1)(b). The Office of the Leader of Opposition is set out in Section 73 of the Constitution (1)There shall be a Leader of the Opposition who shall be appointed by the President. (2) Where the President has occasion to appoint a Leader of the Opposition, he shall in his own deliberate judgment appoint - (a) where there is one opposition party whose numerical strength in the Assembly is greater than the strength of any other opposition party, the member of the Assembly who is, the leader in the Assembly of that party; or (b) where there is no such party, the member of the Assembly whose appointment would, in the judgment of the President, be most acceptable to the leaders in the Assembly of the opposition parties: Provided that, where occasion arises for making an appointment while Parliament is dissolved, a person who was a member of the Assembly immediately before the dissolution maybe appointed Leader of the Opposition. (3)The office of the Leader of the Opposition shall become vacant - (a) where, after any general election, he is informed by the President that the President is about to appoint another person as Leader of the Opposition; (b) where, under section 36(1), he is required to cease to perform his functions as a member of the Assembly; (c) where he ceases to be a member of the Assembly otherwise than by reason of a dissolution of Parliament; (d) where, at the first sitting of the Assembly after any general election, he is not a member of the Assembly; or (e) where his appointment is revoked under subsection (4). (4) Where the President, acting in his own deliberate judgment, considers that a member of the Assembly, other than the Leader of the Opposition, has become the leader in the Assembly of the opposition party having the greatest numerical strength in the Assembly or, as the case may be, the Leader of the Opposition is no longer acceptable as such to the leaders of the opposition parties in the Assembly, the President may revoke the appointment of the Leader of the Opposition. (5) For the purposes of this section, opposition party means a group of members of the Assembly whose number includes a leader who commands their support in opposition to the Government. The readers would note that the President’s power to revoke a Leader of the Opposition is very much restrained and none of the above circumstances presented him to use his powers pursuant to the Constitution. As regards removal of the President from Office, I agree with your Author that the procedure is not only time consuming but extremely complicated that by the time all procedures are exhausted which will be beyond 2017, his term of office will have expired. And I am reiterate that vacation from office of President be left to the present holder alone. I reproduce the relevant provisions for the sake of your readers: 30. Removal of the President and the Vice-President: (1)The President or the Vice-President may be removed from office in accordance with this section for - (a) violation of the Constitution or any other serious act of misconduct; (b) inability to perform his functions whether arising from infirmity of mind or body be from any other cause. (2)Where, the President fails to comply with section 46(2), he may be removed from the office on a motion made by the Prime Minister in the Assembly and supported by the votes of a majority of all the members of the Assembly. (3) The President or the Vice-President shall not be removed from office for, any other cause unless - (a) a motion that the circumstances requiring the removal of the President or the Vice-President be investigated by a tribunal is made in the Assembly by the Prime Minister; (b)the motion states with full particulars the ground on which the removal of the President or the Vice-President is sought; (c) the motion is supported by the votes of not less than two-thirds of all the members of the Assembly; (d) the tribunal, after its investigation, forwards a written report on the investigation addressed to the Assembly and delivered to the Speaker and recommends the removal of the President or the Vice-President; and (e) subject to paragraph (f), a motion made by the Prime Minister and supported by the votes of a majority of all the members of the Assembly required the removal of the President or the Vice-President on a recommendation to that effect by the tribunal; (f) a motion under paragraph (e) is made - (i) where the Assembly is sitting, within 20 days of the receipt of the report of the tribunal by the Speaker; (ii) where the Assembly is not sitting, within 20 days of the day on which the Assembly resumes its sitting. (4) The President or the Vice-President shall have the right to appear and to be represented before the tribunal during its investigation. (5) Where the Assembly supports a motion under subsection (3)(c), it may suspend the President or the Vice-President from performing the functions of his office. (6) A suspension under subsection (5) shall cease to have effect where-. (a) a report under subsection (1)(d) does not recommend that the President or the Vice-President ought to be removed from office; or (b) the Assembly does not support a motion under subsection (3) (4) requiring the removal of the President or the Vice-President. (7) Where the Assembly supports a motion under subsection (3)(e) requiring the removal of the President or the Vice-President, the office of the President or the Vice-President, as the case may be, shall become vacant. (8) In this section, tribunal, means a tribunal consisting of a chairman and 2 or 4 other members appointed by the Chief Justice from amongst persons who hold or have held office as a Judge of a court having unlimited jurisdiction in civil or criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from such a court. And finally Section 64 [6]. During any period in which the office of Leader of the Opposition is vacant by reason that there is no such opposition party as is referred to in section 73(2)(a) and the President, acting in his own deliberate judgment, is of the opinion that no member of the Assembly would be acceptable to the leaders of the opposition parties for the purposes of section 73(2)(b) or by reason that there are no opposition parties for the purposes of that section, the operation of any provision of this Constitution shall, to the extent that it requires the President, the Prime Minister or the Public Service Commission to consult the Leader of the Opposition, be suspended.- could not have helped the President to revoke the Leader of the Opposition. I regret that this rejoinder is quite lengthy but it would not be conducive to a proper understanding same without them. Dev Hurnam[British Qualified Barrister, Non-Practicing since January 2008.
Posted on: Fri, 26 Dec 2014 13:48:41 +0000
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