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THE MAURITIAN CONSTITUTION AS A LIVING DOCUMENT

s.b.domah

BASIC STRUCTURE
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Nation state and sovereign democracy Democratic principles Rule of law Enshrined Fundamental Rights and Freedoms Account/Transparency: public spending Separation of powers  Independence of Judiciary  Political neutrality of Executive  Parliamentary legislature

INTERNATIONAL INSTRUMENTS AND INSPIRATIONS
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THE UNIVERSAL DECLARATION OF HUMAN RIGHTS THE INTERNATIONAL COVENANTS ON HUMAN RIGHTS: ECOSOC & CIPO THE EUROPEAN CONVENTION ON HUMAN RIGHTS CONVENTION VS RACIAL DISCRIMINATION

CHAPTER 1 ARTICLE 1: MAURITIUS SHALL BE A SOVEREIGN DEMOCRATIC STATE ARTICLE 2: THE CONSTITUTION IS THE SUPREME SOURCE OF LAW ANY INCONSISTENCY TO BE VOID .

that other law shall. The baby and the bathwater principle. be void. A living document The Charter of the People A Secular Constitution .WORDING OF SECTION 2      This Constitution shall be the supreme law of Mauritius and if any other law is inconsistent with this Constitution. to the extent of the inconsistency.

CHAPTER 2 – THE BILL OF RIGHTS      RIGHT TO LIFE (no intentional killing) RIGHT TO PERSONAL LIBERTY (no arrest detention w/o given reasons) PROTECTION FROM SLAVERY AND FORCED LABOUR (not in emergency situation) RIGHT TO PROPERTY (compensation req.) EQUAL PROTECTION OF THE LAW (no discrimination) .

teachings.)     FREEDOM OF CONSCIENCE (of thought/ religion.BILL OF RIGHTS (cont. practices etc) FREEDOM OF EXPRESSION (hold opinion. information. receive and impart ideas. correspondence) FREEDOM OF ASSEMBLY AND ASSOCIATION (meet people and organize to protect interests) FREEDOM TO ESTABLISH SCHOOLS (any group can establish a school at its expense) . beliefs.

)    FREEDOM OF MOVEMENT (move freely in any part of Mauritius.BILL OF RIGHTS (cont. creed or sex) SPECIFIED PROCEDURE FOR ENFORCEMENT OF ALL ENSHRINED FREEDOMS – TO SUPREME COURT . caste. to enter and to leave Mauritius) PROTECTION FROM DISCRIMINATION (race. political opinions. place of origin. colour.

CRITICAL WORDS OF S.” . 3   “It is hereby recognised and declared that … there have existed and shall continue to exist … each and all of the following human rights and fundamental freedoms … Protection to those rights and freedoms (are) subject to limitations designed to ensure … rights and freedoms of any individual does not prejudice the rights and freedoms of others or the public interest.

CONSTITUTIONAL RELIEF   Constitutional relief may be sought under Supreme Court (Constitutional Relief) Rules GN 105 of 2000 Application under section 17(1) and 83(1) must state with precision –   The provision of the Constitution. Nature of relief sought  No application to be lodged after 3 months of event .

UNIQUE TO MAURITIUS THEN .CHAPTER 3 & 4    DEALS WITH CITIZENSHIP THE OFFICE OF THE PRESIDENT AND THE VICE-PRESIDENT ORIGINALLY WE HAD THE GOVERNORGENERAL.

2ND & THIRD READING. ASSENT .CHAPTER 5      THE NATIONAL ASSEMBLY COMPRISING 60 (20 x 3) + 2 + UP TO 8 BEST LOSERS ELECTORAL COMMISSIONS SUPERVISES ELECTIONS HAS SOLE POWER TO MAKE LAWS ALTERATION OF SOME PARTS ENTRENCHED 1ST .

POTENCY OF SECTION 45   (1) Subject to this Constitution. order and good government of Mauritius (2) Without prejudice to subsection (1). Parliament may by law determine the privileges. immunities and powers of the Assembly and its members. . Parliament may make laws for the peace.

(B) TO WARN. AND (C) TO BE CONSULTED LEADER OF OPPOSITION ATTORNEY-GENERAL .CHAPTER 6       THE EXECUTIVE CABINET GOVERNMENT WITH A PRIME MINISTER AND THE PRESIDENT WESTMINSTER MODEL PRESIDENT’S ROLE: HAS RIGHTS (A) TO ADVISE.

)     OATHS BY THE MINISTERS OFFICE OF DIRECTOR OF PUBLIC PROSECUTIONS – POWERS SOLE COMMISSIONER OF POLICE NO ARMY IN MAURITIUS .CHAPTER 6 (cont.

REGIONAL ASSEMBLY HAS TWO FUNCTIONS  FORMULATION AND IMPLEMENTATION OF POLICY RE: 4TH SCHEDULE  LEGISLATIVE POWERS UNDER S. 30  POWERS TO MAKE REGULATIONS WITHIN ITS JURISDICTION  .

REGIONAL ASSEMBLY UNDERGOES SIMILAR PROCESS AS UNDER NATIONAL ASSEMBLY EXCEPT  THIRD READING IS TERMED ADOPTION STAGE  WHENCE IT GOES TO CABINET AND NATIONAL ASSEMBLY FOR PASSING  .

CHAPTER 7     INDEPENDENT JUDICIARY JUDGES HAVE SECURITY OF TENURE APPEALS LIE TO THE JUDICIAL COMMITTEE (PRIVY COUNCIL) CONSTITUTIONAL QUESTIONS – SPECIAL PROCEDURE .

CHAPTER 8 & 9 INDEPENDENT INSTITUTIONS Re: RECRUITMENT  THE JUDICIAL AND LEGAL COMMISSION  THE PUBLIC SERVICE COMMISSION  THE DISCIPLINED FORCES SERVICE COMMISSION  THE LOCAL GOVERNMENT SERVICE COMMISSION .

THE OMBUDSMAN    The Ombudsman is a public Office Has power of investigation into any action of maladministration Excludes – – – – President Chief Justice Commissions Director of Public Prosecutions .

CHAPTER 10     FINANCE AUTHORIZATION FOR EXPENDITURE WITHDRAWAL FROM CONSOLIDATED FUND DIRECTOR OF AUDIT .

SAVING OF COURT JURISDICTION COMMISSIONS MAY ADOPT THEIR OWN PROCEDURE PARLIAMENT PRESERVES CONTROL OVER SUBORDINATE LEGISLATION.” “PUBLIC OFFICER.” ETC. .CHAPTER 10 & 11 (MISCELLANY)     INTERPRETATION OF CRUCIAL WORDS FOR EXAMPLE “MAURITIUS.

HINDU.FIRST SCHEDULE    FOR THE ALLOCATION OF UP TO 8 SEATS UNDER THE BEST LOSER SYSTEM CREATES 4 COMMUNITIES: CHINESE. MUSLIM AND THE GENERAL POPULATION VOTING IS STILL AS PER THE ORIGINAL 1972 LIST .

STILL BEING DISCUSSED HAS A UNICAMERAL LEGISLATURE .SOME COMMENTS     A UNIQUE CONSTITUTION : MADE TO MEASURE FOR THE MAURITIAN PEOPLE HAS THE FIRST PAST THE POST SYSTEM WITH A CORRECTIVE FORMULA PROPORTIONAL REPRESENTATION WAS DISCUSSED BUT NO CONSENSUS REACHED.

MUTUAL RESPECT AND TOLERANCE. A FUN CULTURE AS OPPOSED TO A GUN CULTURE ITS PHILOSOPHY OF ALTRUISM RATHER THAN INDIVIDUALISM “THE DODO: WELL AND TRULY EXTINCT” .COMMENTS (Cont. 1)     WHAT SAVED MAURITIUS? A DEMOCRATIC TRADITION.

Republicanism and secularism cannot be touched  Fundamental rights are not given by Constitutions but by birth which no constitution can take away .Comments (cont.)   The basic structure doctrine is inherent in the Mauritian Constitution The Keshavanand Bharati Case (India) – Power to amend the Constitution is not an unlimited power.

PARTING WORDS I « THE INHERENT DIGNITY AND THE EQUAL AND INALIENABLE RIGHTS OF ALL MEMBERS OF THE HUMAN FAMILY IS THE FOUNDATION OF FREEDOM. JUSTICE AND PEACE IN THE WORLD » .UDHAR .

” .PARTING WORDS II  “OUR PARTICULAR SECURITY IS THE POSSESSION OF A WRITTEN CONSTITUTION.Thomas Jefferson . LET US NOT MAKE IT A BLANK PAPER BY CONSTRUCTION.

THE END  THANK YOU .

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PUBLIC INTEREST CASES     X v Y 1988 W v EGDELL 1990 (disclosure to prevent or to report crime. risk of serious harm or death A-G v MULHOLLAND (disclosure in the interest of justice) A v B Plc (disclosure in the interest of free speech) .

ANSWER   WOOLGAR v CHIEF CONSTABLE OF SUSSEX POLICE 1999 COURT WILL STRIKE A BALANCE BETWEEN PUBLIC INTEREST AND PRIVATE/PROFESSIONAL INTEREST .

ex parte Source Informatics 2001 The category of public interest is not closed. .CURRENT TENDENCY     TWO CASES: A HEALTH AUTHORITY v X [2001] R v Department of Health.