Ramgoolam v Speaker of National Assembly

1993 MR 269
1993 SCJ 15

Proag J

The applicant is apprehensive that he would lose his seat as a member of the
National Assembly of the State of Mauritius on 27 January 1993 or soon thereafter. This
apprehension has arisen after his return to Mauritius on 13 December 1992. I quote from
his affidavit dated 23 December 1992:

“It has been widely broadcast and publicised and stated publicly by the Prime
Minister and Leader of the House that my seat as a member of the Assembly will
be declared vacant on the 27 January 1993”.

The applicant, in the said affidavit, has not reproached the respondent for saying
anything or taking any steps to oust him from Parliament, apart from stating –

(i) that he verily believed that the respondent would declare his seat vacant on
the above mentioned date or thereafter;

(ii) that the respondent would do so on the ground that he would have
absented himself from the sittings of the Assembly for a continuous period
of three months on 27 January 1993;

(iii) that on the strength of Section 35(1)(e) of the Constitution of Mauritius he

would not have absented himself from the sittings of Parliament for a
continuous period of 3 months on that date;

(iv) that he was ready and willing to attend the sittings of the Assembly, if in
session, and

(v) that if he loses his seat by the act of the respondent, prejudice would be
caused to him and to his constituents.

The respondent has stated, inter alia, in his affidavit dated 11.01.93

(i) that in the case of a member who absents himself from the sittings of the
National Assembly for a continuous period of 3 months during any session
without leave of the Speaker having been previously obtained, his seat as a
member becomes vacant by operation of the provisions of the
Constitution, and

(ii) that the application be therefore set aside.

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 It is established law that Parliament being sovereign no one is authorized to probe
into its internal affairs and in the present case to surmise that it is brewing mischief
against the applicant. A series of cases from Lincoln & Ors v The G.G. of Mauritius &
Ors [1973 MR 290] to Keetaruth v the Prime Minister [1992 SCJ 223] support this
proposition.

However, it is significant to note that counsel for both parties have

recognized that the Constitution of Mauritius does not permit the Speaker to declare the
seat of any member vacant. In fact, in my view, by virtue of section 37 of the
Constitution the question of loss of membership is not the internal business of Parliament.
It is the Supreme Court that is empowered to determine such a matter. I set hereunder the
relevant part of section 37 to make my point.

“37 Determination of questions as to membership

(1) The Supreme Court shall have jurisdiction to hear and determine any
question whether -

(a) ……………
(b) …………..
(c) any member of the Assembly has vacated his seat ……………..as
a member of the Assembly.

(2) …………..

(3) ………….

(4) An application to the Supreme Court for the determination of any question
under subsection (1) (c) may be made –

(a) by any member of the Assembly or the Attorney-General; or

(b) by any person registered in some constituency as an elector, and,

where it is made by a person other than the Attorney-General, the
Attorney-General may intervene and may then appear or be
represented in the proceedings.”

It is clear that the Supreme Court will act only when an action is brought by one
or more of the persons listed in Section 37 (4) (a) & (b) to the effect that a member has
vacated his seat. It follows that the Speaker or any other member of the National
Assembly or any elector of the State of Mauritius can take steps to declare the seat of the
applicant vacant on 27 January 1993 or any time thereafter only by bringing an action
before the Supreme Court for the purpose of praying the Court to declare that the
applicant’s seat has become vacant, if the claimant thinks that by virtue of section 35(i)
(e) of the Constitution, the applicant has vacated his seat. It goes without saying that the

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respondent is not entitled to restrain the applicant from attending Parliament without
having recourse, in the first place, to the Supreme Court.

Therefore I hold that the applicant’s move for an Interlocutory Order in the nature
of an injunction against the respondent is not called for.

However, I grant that an injunction could have been granted even through the
applicant’s legal rights have not as yet been infringed, and this, under the doctrine QUIA
TIMET – ‘because he fears’ that wrong will be done to him if the order is not made. But
the fear of the applicant is not based on positive grounds inasmuch as the respondent, in
his capacity of Speaker or member of the National Assembly, has manifested no intention
of causing the applicant to lose his seat.

Therefore the application is set aside.

With costs.

For Applicant:
Sir R Jeewoolall
Mr G Ollivry QC

For Respondent:
State Attorney
Mr K Matadeen, QC and A Caunhye

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