La nomination de SAJ comme ministre mentor n’était pas anticonstitutionnel…

Sachidanand Reekhaye, un électeur de la circonscription de Piton/Rivière-du-Rempart et Patrice Armance, député du Parti mauricien social-démocrate (PMSD) avaient déposé une plainte contre Sir Anerood Jugnauth (SAJ). Ils contestaient la démission de SAJ comme Premier ministre ainsi que sa nomination comme ministre Mentor.

Ils réclamaient un ordre de la Cour suprême pour que le siège de SAJ soitdéclaré vacant à l’Assemblée nationale. Mais les juges ont tranché en faveur du ministre Mentor. Le Senior Puisne Judge, Eddy Balancy, et le juge Ashraf Caunhye ont fait comprendre que selon les articles 117 et 59 (2) de la Constitution il n’y avait rien d’illégal dans cette démarche. De ce fait la Cour suprême a rejeté la plainte de Sachidanand Reekhaye et de Patrice Armance.

Le Senior Puisne Judge Eddy Balancy et le juge Asraf Caunhye ont soutenu : « The appointment of the defendant as Minister Mentor, Minister of Rodrigues and Minister of Defence was not unconstitutional»

Les contestataires étaient représentés par un panel d’hommes de loi, composé des avocats Kushal Lobine, Assad Peeroo, Adrien Duval, entre autres. L’État était représenté par Me Dheeren Dabee, Solicitor General (SG), et Rajesh Ramloll, Deputy Solicitor General.

Voici le jugement complet:

REEKHAYE S. & ANOR v THE RT. HON. SIR ANEEROOD JUGNAUTH GSCK, KCMG, QC

 

2019 SCJ 18

Record No. 114468

 

THE SUPREME COURT OF MAURITIUS

In the matter of:

1. Sachidhanand Reekhaye
2. Hon. Patrice Kursley Armance

Plaintiffs

 

V

The Rt. Hon. Sir Aneerood Jugnauth GSCK, KCMG, QC

Defendant

In the presence of:

1. The Honourable Attorney General
2. The State of Mauritius

Co-defendants

————-

JUDGMENT

In a plaint with summons dated 15 February 2017 the two plaintiffs have prayed for a

declaration to the effect that: –

 

(A) the defendant’s resignation from the Office of Prime Minister shall be

deemed and construed to be his resignation as Member of Parliament

for constituency No. 7;

 

(B) the appointment of the defendant as Minister Mentor, Minister of

Rodrigues and Minister of Defence is unconstitutional, in breach of

sections 1, 59 (3), 60 (3) and 63 (1) of the Constitution, and as such

invalid, and null and void to all intents and purposes;

 

(C) the defendant therefore can no longer be part of the Executive and the

defendant’s seat as a Member of Parliament should be declared

vacant.

 

Ex facie the plaint with summons, the plaintiff No. 1 is a registered elector for

constituency No. 7 and the plaintiff No. 2 the President of the Youth Wing of the “Parti Mauricien Social Démocrate” (PMSD) who was elected as Member of Parliament for the Alliance Lepep which then comprised the PMSD and which, under the leadership of the defendant, won the 2014 General Elections following which the defendant became Prime Minister.

 

In a plea in limine the defendant averred, inter alia, that the plaintiffs had no locus to enter the application. On 30 January 2018, the parties indicated that the points raised in limine

would be taken at the hearing on the merits. However, at the hearing those points have not

been pressed.

 

The two issues arising in this case are those raised in prayers (A) and (B) above, prayer

(C) being for a declaration which would follow upon the issues raised in prayers (A) and (B)

being decided in favour of the plaintiffs. The following are, amongst others, agreed facts, as per a statement of agreed facts filed by Counsel on both sides:

 

(1) Following the General Elections held in December 2014, the Alliance Lepep, which comprised the Mouvement Socialiste Mauricien, the Mouvement Liberater and the PMSD, obtained a three-quarter majority of the members of Parliament and the defendant was returned as first elected member for the Constituency No. 7.

 

(2) The President of the Republic appointed the defendant as Prime Minister for the Republic of Mauritius on 13 December 2014.

 

(3) On 21 January 2017, in an official and public message, the defendantin his capacity as Prime Minister of the Republic of Mauritius publicly announced in an address to the Nation that he intended to resign as Prime Minister and that Honourable Pravind Kumar Jugnauth would be the next Prime Minister.

 

(4) On 23 January 2017 –

(i) the defendant tendered his resignation as Prime Minster with immediate effect;

 

(ii) the President accepted the resignation of the defendant and that of his Government with immediate effect;

 

(iii) the President appointed Honourable Pravind Kumar Jugnauth as Prime Minister with effect as from that same date;

 

(iv) the President welcomed the Prime Minister’s advice as regards the appointment of the other members of Government;

 

(v) after having been appointed as Prime Minister, Hon. Pravind Kumar Jugnauth advised the President to establish, under section 59 (2) of the Constitution, the office of the Minister, the

holder of which would bear the title “Minister Mentor” and the President approved the establishment of that office;

 

(vi) Hon. Pravind Kumar Jugnauth, after having been appointed as Prime Minister, advised the President, in accordance with sections 59 (3) and 62 of the Constitution, to appoint a number of persons as Ministers and Attorney General respectively, including the defendant who was to be appointed as Minister bearing the title “Minister Mentor” and to whom would be also assigned responsibility as Minister of Defence and Minister of Rodrigues;

 

(vii) by way of a communiqué, the Office of the President published the List of Ministers accordingly.

 

The first issue

The first issue is whether the resignation of the defendant from the office of Prime Minister automatically entailed his resignation as a member of the National Assembly. The letter of resignation of the defendant, dated 23 January 2017, and addressed to the President of the Republic, simply stated:

 

“I hereby tender my resignation and that of my Government with immediate

effect.”

 

At paragraph 5 (b) of his plea, the defendant avers that his resignation was “pursuant to

section 117 of the Constitution”. That section reads as follows: “117. Resignations

Any person who has been appointed to any office established by this Constitution may resign from that office by writing under his hand addressed to the person or authority by whom he was appointed, and the resignation shall take effect, and the office shall accordingly

become vacant –

(a) at such time or on such date (if any) as may be specified in the writing; or

(b) when the writing is received by the person or authority to whom it is addressed or by such person as may be authorised by that person or authority to receive it, whichever is the later:

[…]”

 

Counsel for the plaintiffs has argued that this section does not apply to the Prime Minister.

 

We are unable to agree with that contention in view of the specific wording of the section which makes it applicable to any person who has been appointed to “any office established by this Constitution”. (emphasis added). The office of the Prime Minister is established by section 59 (1) of the Constitution.

 

Counsel for the plaintiffs further contended that under section 60 (3) of the Constitution, a Prime Minister who resigns from that office cannot continue to be a member of Parliament. We are unable to read such a proposition from section 60 (3) the relevant part of which reads as follows:

“The office of Prime Minister or any other Minister shall become vacant –

(a) where he ceases to be a member of the Assembly otherwise than

by reason of a dissolution of Parliament;

[…]”

That enactment clearly conveys, in our view, that after a Prime Minister or any other Minister has ceased to be a member of the Assembly otherwise than by a dissolution of Parliament, the relevant office becomes vacant. The circumstances in which a Prime Minister orMinister will cease to be a member of the Assembly are in our view (i) those listed in section 35

of the Constitution except for dissolution of Parliament; (ii) the circumstance mentioned in

section 36; and (iii) obviously enough, the death of the Prime Minister or Minister concerned

which would also be the death of the member of Assembly that he was. None of those

circumstances are applicable to the present case.

 

Counsel for the plaintiffs further contended that we are in a democracy where at the General Elections the population is essentially concerned with electing a Prime Minister. He quoted in that connection the following statement by Sir Ivor Jennings in “The British

Constitution”, Fifth Edition at Page 162: “A general election is in reality the election of a Prime Minister”.

 

Counsel pursued his argument by pointing out that in Mauritius, where we follow the Westministerian model, the situation is the same. In Counsel’s contention, it follows that a Prime Minister who resigns from that office can no more continue to be a member of the Assembly.

 

We are unable to agree with that contention. As rightly submitted by Counsel for the

defendant and co-defendants, that contention, whilst it may be politically attractive, cannot hold having regard to the provisions of our written Constitution. In our view, there is nothing in our Constitution which could be read as conveying that the resignation of a Prime Minister from that office should be deemed or construed to be a resignation as member of the National Assembly.

 

Had the framers of our Constitution intended such a consequence, we have no doubt that it

would have been expressly set out in the Constitution.

 

The second issue

The second issue relates to the constitutionality of the appointment of the defendant as Minister Mentor, Minister of Rodrigues and Minister of Defence. In the plaint with summons, that appointment is alleged to be in breach of sections 1, 59 (3) and 60 (3) of the Constitution.

Section 1 provides that “Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius”. Section 59 (3) provides that the President, acting in his own deliberate judgment, shall appoint as Prime Minister the member of the Assembly who appears to him best able to command the support of the majority of the members of the Assembly.

 

And section 60 (3), already considered above, provides for the circumstances where the office of Prime Minister or any other Minister shall become vacant. We fail to see in what way the

appointment of the defendant could be said to be in breach of these enactments having regard

to our conclusion under the first issue. Indeed, Counsel for the plaintiffs did not expatiate on the second issue which he seemed to consider as indissociable from the first issue.

 

As pointed out by Counsel for the defendant and co-defendants, the appointment of the

defendant as Minister Mentor was effected in conformity with the Constitution. Indeed section 59 (2) thereof provides as follows:

 

“There shall be, in addition to the offices of Prime Minister, Deputy Prime Minister and Attorney-General, such other offices of Minister of the Government as may be prescribed by Parliament or, subject to any other law, established by the President, acting in accordance with the advice of the Prime Minister.”

 

And Section 62 provides as follows:

“The President, acting in accordance with the advice of the Prime Minister, may, by directions in writing, assign to the Prime Minister or any other Minister responsibility for the conduct (subject to this Constitution and any other law) of any business of the Government, including responsibility for the administration of any department of Government.”

 

It is an agreed fact that on 23 January 2017 Hon. Pravind Kumar Jugnauth, after having been appointed as Prime Minister, advised the President in accordance with section 59 (2), to

appoint the defendant as Minister bearing the title “Minister Mentor” and to also assign to the

defendant, in accordance with section 62, responsibility as Minister of Defence and Minister of Rodrigues, and that the President acted in accordance with such advice.

 

It follows that the appointment of the defendant as Minister Mentor, Minister of

Rodrigues and Minister of Defence was not unconstitutional.

 

In the light of our conclusions under the two issues referred to above, the plaint with

summons is set aside. With costs.

7

1. Balancy

Senior Puisne Judge

1. A. Caunhye

Judge

22nd January 2019

————-

Judgment delivered by Hon. E. Balancy, Senior Puisne Judge

 

For Plaintiffs : Mr. Y. W. Appado, Attorney-at-Law

Mr. K. Lobine, of Counsel

Mr. A. Peeroo, of Counsel

Mr. R. Mooroongapillay, of Counsel

Mr. A. Duval, of Counsel

 

For Defendant : Miss. V. Nirsimloo, Chief State Attorney

and Co-Defendants Mr R. Dabee, Solicitor General

Mr R. Ramloll, Deputy Solicitor General

Miss K. Domah, State Counsel