Constitutional law

The Mauritian Parliament has inherited much from the Westminster Model.
The Westminster Model is characterised by:
 Parliamentary Sovereignty
 Separation of Powers between the organs of the State.

A. Parliamentary Sovereignty
In any state you will find one ultimate source of legal authority. In countries with a written
constitution, it will be the constitution which has ultimate authority as in Mauritius. In the
United Kingdom, with its uncodified constitution, ultimate law-making power lies with
Parliament, the House of Commons, House of Lords and the Crown. As A.V. Dicey
expressed it, parliamentary sovereignty or supremacy, is the cornerstone of the
constitution.
A.V. Dicey’s analysis of sovereignty
In Dicey’s view, parliamentary sovereignty entails three principal aspects. Each
of these needs to be studied with care:
(i) Parliament – the supreme law-making body – may legislate on any
subject-matter.
(ii) No Parliament can be restricted by a predecessor or restrict the
power of a future Parliament.
(iii) No body, including a court of law, may question the validity of Acts
of Parliament.

‘Parliament can legislate on any subject matter’

However, in Mauritius the doctrine of Parliamentary Sovereignty is subject to
some limitation imposed by the constitution.

45. Power to make laws

(1)       Subject to this Constitution, Parliament may make laws for the peace, order and
good government of Mauritius.
46. Mode of exercise of legislative power
(1)      The power of Parliament to make laws shall be exercisable by Bills passed by the
Assembly and assented to by the President.

The different organs of the State

(i) The Executive
The executive comprises the Prime Minister and Cabinet ministers. Ancillary to
Government is the civil service which runs the administration of the state, and the armed
forces and the police which uphold executive power. The role of the executive is to
formulate and implement government policy across all governmental activities. The
elected government of the day is accountable to Parliament, which has the ultimate
power to dismiss a government and force a general election through which the people
will decide on who will run the next government. Members of government are primarily
elected Members of Parliament who sit in the National Assembly.

(ii) Legislature

Section 31.       Parliament of Mauritius

(1)           There shall be a Parliament for Mauritius, which shall consist of the President and a
National Assembly.
  (2)         The Assembly shall consist of persons elected in accordance with the First Schedule,
which makes provision for the election of 70 members

(iii) The judiciary

The judiciary includes all the judges in the courts of law, and also those who hold judicial
office in tribunals. Senior judicial appointments are made by the President of the
Republic. It is the function of the judges to interpret legislation in line with the intention of
Parliament and to develop the common law (judge-made law). Constitutionally, judges
are subordinate to Parliament and have no power to challenge the validity of Acts of
Parliament.
Judges are prohibited from standing for election to National Assembly as they are public
officers (Disqualifications for Membership section 34 (1)(b) )

B. Separation of powers
Separation of powers is a constitutional principle designed to ensure that the functions,
personnel and powers of the major institutions of the state are not concentrated in any
one body. It ensures a diffusion rather than a concentration of power within the state.
Under the uncodified, largely unwritten British constitution there is no strict separation of
powers. Instead, while some separation of powers exists, it is more accurate to speak of
a system of checks and balances which ensures that powers are not abused. The
fundamental purpose of the separation of powers is to avoid the abuse of power and
thereby to protect the rights and liberties of citizens.

The concept itself is of great antiquity and can be attributed to Aristotle (384–322 BC);
however, the clearest exposition of the doctrine can be found in the French writer
Charles-Louis de Montesquieu’s De l’esprit des lois (1748). In essence, Montesquieu
states that the three organs of government – the executive, legislature and judiciary –
should each have a discrete and defined area of power and that there should be a clear
demarcation of functions between them: this is true ‘separation of powers’.

Under a written constitution, like Mauritius, the powers allocated to various institutions
are clearly defined. It should be noted that even under a written constitution a complete
separation of powers is not possible, and that without some degree of interaction
between the institutions there would be constitutional deadlock.
In Mauritius there is no strict separation of power between the executive and the
legislative organs of the State. Ministers are at the same time members of the executive
and members of the legislature.
Structure of Parliament
In England, it is characterized by its bicameralism – ie two houses of Parliament.
In Mauritius, there is a single chamber.
The Mauritian Parliament comprises of 70 Members
Section 31.       Parliament of Mauritius
(2)       The Assembly shall consist of persons elected in accordance with the First
Schedule, which makes provision for the election of 70 members

Functions of Parliament
The main functions of Parliament include the passing of legislation and the scrutiny of
the administration through debate, the Committee system and the control of national
finance.

The Legislative Process

There are basically 3 types of bills:
 Public Bills
 Private Bills
 Private Member’s Bills

Distinction between Public and Private Bills

a) Public Bills seek to alter the general law and affect the whole Community –e.g Road
Traffic Act, Environmental Protection Act
b) Private Bills affect only a section of the community and relate to matters of individual,
corporate or local interest.

A private member's bill is a proposed law introduced by a backbencher, a so-called

private member of parliament, who can be a member of a party represented in the
government or in the opposition.

Public Bill Procedure

Most public Bills are government Bills – ie proposed by Ministers.
1) First Reading – The Bill is presented to Parliament
2) Second Reading – The House considers the principles and merits of the Bill –
Debate
3) Committee Stage – The Bill is referred to a standing committee for detailed
clause by clause consideration
4) Third reading – the Bill is debated in general terms
5) Voting of the Bill – The “Ayes” or the “Noes” have it.
6) Assent by the President of the Republic
7) Publication in the Government Gazette.

Note: If, in his own deliberate judgment, the President of the Republic considers that a
Bill should be reconsidered by the National Assembly, he may withhold assent. He must
do so within 21 days of the submission of the Bill for assent and return it to Assembly
with a request to reconsider the bill, including any proposed amendment thereto:
Section 46(2)( c ) of the Constitution

Where a Bill has been considered by the Assembly and is passed again with or without
amendment, the President shall signify his assent.

CONSTITUTIONAL FOUNDATIONS OF THE COURT

Role of Courts
 Interpretation/Application/Enforcement of laws
 Judicial decisions must be based on the law and it is important to know the
sources of law.

The constitutional foundation of the court is found in the Constitution

Section 76.       Supreme Court

(1)       There shall be a Supreme Court for Mauritius which shall have unlimited
jurisdiction to hear and determine any civil or criminal proceedings under any law
other than a disciplinary law and such jurisdiction and powers as may be
conferred upon it by this Constitution or any other law.
(2)       Subject to section 77, the judges of the Supreme Court shall be the Chief
Justice, the Senior Puisne judge and such number of Puisne Judges as may be
prescribed by Parliament:
Provided that the office of a judge shall not be abolished while any person is
holding that office unless he consents to its abolition.

Section  80.       Courts of Appeal

(1)       There shall be a Court of Civil Appeal and a Court of Criminal Appeal for
Mauritius, each of which shall be a division of the Supreme Court.
 
(2)        The Court of Civil Appeal shall have such jurisdiction and powers to hear and
determine appeals in civil matters and the Court of Criminal Appeal shall have
such jurisdiction and powers to hear and determine appeals in criminal matters
as may be conferred upon them respectively by this Constitution or any other
law.
 
(3)      The Judges of the Court of Civil Appeal and the Court of Criminal Appeal shall
be
the judges for the time being of the Supreme Court