Introduction to Law and Legal Methods – LAW 1105

UNIT 3 LEGISLATION & THE LEGISLATIVE PROCESS

Unit Structure

3.0 Overview
3.1 Learning Objectives
3.2 Primary Legislation (Acts of Parliament)
3.2.1 Types of Bills
3.2.2 The Procedure in National Assembly
3.2.3 The Presidential Assent
3.2.4 Regional Assembly Laws
3.3 Secondary/Subsidiary/Delegated Legislation
3.3.1 Variety of Subsidiary Legislation
3.3.2 Reasons for Subsidiary Legislation
3.3.3 Control over Subsidiary Legislation
3.3.3.1 Ministerial Control
3.3.3.2 Parliamentary Control
3.3.3.3 Judicial Control over Subsidiary Legislation
3.4 Operation of Legislation
3.4.1 Commencement of Legislation (Coming into Operation/Coming into
Force)
3.4.2 “Application de la Loi dans le Temps/Conflit de Lois dans le Temps"
3.4.3 “Conflits de Lois dans L'instant"
3.5 Suggested Reading
3.6 Activities

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3.0 OVERVIEW

The purpose of this Unit is to

- examine the legislative process by bodies entrusted with law-making power;
- analyse how legislation operates.

3.1 LEARNING OBJECTIVES

At the end of this Unit, students would know

1. how Parliament exercises its law-making power;
2. what are the varieties of subsidiary legislation and the controls that are exercised
thereon;
3. when new legislation comes into force and how ít applies to an existing situation.

3.2 PRIMARY LEGISLATION (ACTS OF PARLIAMENT)

Section 45(1) of the Constitution confers on Parliament the power to make laws.

Section 46(1) of the Constitution provides that the power of Parliament to make laws shall be
exercisable by Bills passed by the National Assembly and assented to by the President of the
Republic.1

3.2.1 Types of Bills2

- Public Bills and Private Bills: Public Bills relate to matters of public policy and are

1
Section 46 deals with the mode of exercise of legislative power.
2
Vide Standing Orders of the National Assembly. Also Erskine May, Parliamentary
Practice.

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concerned with the national interest; private bills, on the other hand, are concerned
with particular interests or benefits of any person or persons, association or corporate
body.

- A Private Members' Bill is a Public Bill which is initiated by a Member of the

National Assembly, who is not a Minister (Government Bills), provided that the
Assembly has granted leave to proceed with the Bill.

- Money Bills can only be introduced in the Assembly by a Minister.3 They make
provision for the following purposes:

(i) for the imposition of taxation or the alteration of taxation otherwise than by
reduction;

(ii) for the imposition of any charge upon the Consolidated fund or other
public funds of Mauritius or the alteration of any such charge otherwise
than by reduction;

(iii) for the payment, issue or withdrawal from the Consolidated Fund or other
public funds of Mauritius of any money not charged on it or any increase in
the amount of such payment, issue or withdrawal; or

(iv) for the composition or remission of any debt to the Government.

3.2.2 The Procedure in National Assembly

There are various stages through which the Bill must go through before it is adopted by the
National Assembly.

3
Vide section 54 of the Constitution.

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- First Reading: Purely formal; motion that the Bill be read for the first time; the Clerk
of the National Assembly reads the short title of the Bill; no debate at this stage.

- Second Reading: After a motion has been made that the Bill be read for a second
time, a general debate on the philosophy and the broad principles of the Bill follows.
The Opposition can give notice during the Second Reading of an amendment it
proposes to make at the Committee Stage; no amendment of the clauses is possible at
this stage. A vote is taken at the end of the debates.

- Committee Stage: The Bill is examined clause by clause; amendments are considered;
generally by a Committee of the Whole House.

- Report Stage: After a full and detailed scrutiny, the Bill is reported to the House; a
Bill which has passed through a Committee of the Whole Assembly is not subject to
debate at the Report Stage.

- Third Reading: To review the Bill in its final form after amendments have been made
and accepted at the Committee Stage; a debate is possible (rare in Mauritius) but it is
restricted to the contents of the Bill and Members cannot include references to what
they would have liked to have seen in the Bill.

Withdrawal of Bills: Motion can be made by the Member in charge of the Bill at any stage of
the proceedings.

Certificate of Urgency: The Prime Minister can deliver a Certificate of Urgency to a Bill if he
is of opinion that there is a pressing and urgent need for the Assembly to pass such a Bill; a Bill
certified as urgent can pass all its various stages in one day.

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Voting Procedure

The 'Ayes' or the 'Noes' have it.

- Ordinary Bills: A simple majority of Members present and voting at the end of the
Second Reading is required to pass an ordinary piece of Legislation [section 53(1) of
the Constitution]

[Note that the quorum for holding sittings of the national Assembly is 17, in addition to the
person presiding: section 52(1)]

- Bills amending the Constitution: A qualified majority is required (section 47 of the

Constitution).

Section 47(2) of the Constitution: Amendment of certain provisions of the Constitution

[(a) this section; (b) sections 28-31, 37-46, 56-58 other than 57(2), 64, 65, 71, 72, and
108; (c) Chapters II, VII, VIII and IX; the First Schedule; (d) Chapter XI, to the extent
that it relates to any of the provisions specified in paragraphs (a) to (d)] requires the
support at final voting of the votes of not less than 3/4 of all the members of the
Assembly.

Section 47(3): Amendment of section 1 or Section 57(2). The proposed Bill has before
its introduction in the Assembly been submitted by referendum to the electorate of
Mauritius and has been approved by the votes of not less than three quarters of the
electorate, and it is supported at final voting by the votes of all the members of the
Assembly. But note that this very subsection can be amended by the votes of 3/4 of all
the MPs [section 47(2)(a)].

Section 47 (4): Amendment of the provisions of the Constitution, other than those
mentioned in subsection (2), require the support at final voting of not less than 2/3 of
the votes of all the Mps.

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3.2.3 The Presidential Assent

Withholding of Assent: According to section 46(2)(b), the President cannot withhold assent
in the case of money bills, provided for by section 54 of the Constitution, and bills amending
the Constitution (certified by the Speaker of the Assembly as having complied with the
requirements of section 47).

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

Note that according to section 46(2)(d), where a Bill has been reconsidered by the Assembly
and is passed again with or without amendment, the President shall signify his assent.

3.2.4 Regional Assembly Laws

Section 75 A(1) of the Constitution establishes a Rodrigues Regional Assembly.

Section 75B(1) (a) is to the effect that, subject to the Constitution, the Regional
Assembly shall have such powers and functions as may be prescribed and, in
particular, the power to propose and adopt Bills in relation to the matters for
which it shall be responsible, which Bills, when adopted by Parliament in such
manner as may be prescribed, shall be known as Regional Assembly Laws and shall
be so designated in the Short Title.

Section 75B(2) of the Constitution provides that Regional Assembly Laws shall
apply only to Rodrigues.

Section 30(1) of the Rodrigues Regional Assembly Act No. 39 of 2001 provides

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that, without prejudice to sections 45 and 46 of the Constitution [which confer

law-making power on the Parliament], the Regional Assembly may, in the exercise
of its powers under the Act, propose and adopt Bills in relation to the matters for
which it is responsible under section 26 of the said Act. Section 26 of the
Rodrigues Regional Assembly Act confers on the Regional Assembly, in relation to
Rodrigues, the responsibility for the formulation and implementation of policy in
respect of matters set out in the Fourth Schedule [which lists down 47 areas of
responsibility to be exercised by the Regional Assembly].

By virtue of section 30(2) of the Rodrigues Regional Assembly Act, such Bills
shall be debated in the Regional Assembly in accordance with its Standing Orders
and, if adopted, shall be transmitted by the Chief Commissioner to the Minister, to
whom responsibility for Rodrigues, with a request for its introduction into
Parliament for enactment into law in accordance with section 46 of the
Constitution. Section 30(3) of the Act is to the effect that where the Cabinet so
decides, a Bill adopted shall be introduced into Parliament with a view to its
enactment.

Section 2(2)(a)(ii) of the Act provides that the Regional Assembly may, in relation
to the matters for which it is responsible under section 26, propose and adopt a
Bill for the modification of any law enacted by Parliament in its application to
Rodrigues. But note that section 30(4) of the Rodrigues Regional Assembly Act is
to the effect that a Bill adopted by the Regional Assembly shall not seek to
abrogate, suspend, repeal alter, override or be contrary to any law of the Republic
of Mauritius or impose any direct or indirect taxation whatsoever.

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3.3 SECONDARY/SUBSIDIARY/DELEGATED LEGISLATION

3.3.1 Variety of Subsidiary Legislation

They are of two types: (i) those which derive their validity from Acts of Parliament; (ii) those
which derive their validity directly from the Constitution.

- Rules/Regulations made under an Act of Parliament (the enabling Act)

[Legislative power entrusted by Parliament]: These are the rules or regulations
made by a Minister or a local council or a public authority to whom Parliament has
delegated its law-making power. Parliament may by Act delegate its legislative powers
on particular matters.

Though it is not expressly stated in the Constitution that Parliament may do so, this is
to be inferred by implication from section 122 which provides for parliamentary control
over certain subsidiary legislation. The Rules, Regulations and other by-laws derive
their validity from the enabling Act.

Eg section 20 of the University of Mauritius Act empowers the Council of the

University, after consultation with Senate, by special resolution to make Statutes to
prescribe or regulate inter alia the functions, duties and terms of office of such officers
as the Council may think proper to appoint. Thus by virtues of these powers the
Council made Statutes: those presently in force were published in Government Notice
No. 157 of 1993, and were subsequently amended by Government Notice No. 18 of
1997. Section 21 of the University of Mauritius Act empowers Senate to make
regulations relating inter alia to teaching, schemes of instruction, study and research.

Section 3 of the Bonds Act 1981 empowers the Minister of Finance to make such
regulations as he thinks fit for the purpose of this Act. He may, without prejudice to the
generality of the foregoing power, by regulations provide for the manner and form of

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bearer bonds and premium bonds, the conditions subject to which the bonds may be
issued, the expenses or commission or bank charges which may be authorised for the
issue of the bonds. Thus in pursuance of these powers the Anonymous Bearer Bonds
Regulations 1983 were enacted (Government Notice No. 56 of 1983) by the Minister.

Regional Assembly Regulations: According to section 75B(1) (b) of the

Constitution, the Regional Assembly may make regulations, which shall be known
as Regional Assembly Regulations and shall be so designated in the Heading.
Section 75B(2) of the Constitution provides that Regional Assembly Regulations
shall apply only to Rodrigues. Section 31 of the Rodrigues Regional Assembly
delimits the scope of the Regional Assembly's power to make regulations

- Rules and Regulations made under Section 118 & 120 of the Constitution
[Legislative power entrusted by the Constitution]: Section 118 of the Constitution
empowers Commissions and Tribunals established under the Constitution with the
power to make by-laws. The Public Service Commission (PSC) and the Discipline
Forces Service Commission (DFSC) are therefore entrusted by the Constitution with
the power, by regulations, to make provision for regulating and facilitating the
performance of their functions under the Constitution.

Moreover, section 120 of the Constitution provides that where any power is conferred
by this Constitution to make any order, regulation or rule, the power shall be construed
as including the power, exercisable in like manner, to amend or revoke any such order,
regulation or rule.

Note there is a need for publication of subsidiary legislation in the Government Gazette: section
12 of the IGCA (Interpretation and General Clauses Act) provides that every subsidiary
enactment, other than that made under a private Act, shall be published in a legal supplement to
the Gazette. According to section 23(b) IGCA where an enactment confers power on any
person to make a subsidiary enactment, the subsidiary enactment may be amended in the same

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manner by and in which it was made by the same person or by any other person on whom the
enactment may confer the power to make the subsidiary enactment.

3.3.2 Reasons for Subsidiary Legislation

- Pressure upon parliamentary time: If Parliament attempted to enact all the

legislation necessary to govern (laws necessary for the peace, order, and good
government of Mauritius), the legislative machinery would break down as the
parliamentary procedure for enacting legislation can be both slow and cumbersome. By
delegating the formulation of detailed rules to Ministers or public authorities,
Parliament can thus concentrate its attention on discussing the essential principles of
legislation and addressing other matters (holding the Executive accountable through
Parliamentary Questions and exercising control over public expenditure).

- The need to deal with future contingencies: When a new piece of legislation is
enacted, it is quite difficult for Parliament to foresee all the possible contingencies that
may affect the operation of that particular statute in the future. By delegating its law-
making power to the relevant Minister to introduce new measures, if and when the
need arises, to deal with unforeseen situations which may crop up, Parliament avoids
the need for amending legislation to be enacted and thus enhances both the speed and
flexibility of the legislative process.

- Technical content: Members of Parliament generally express partisan views (that is

those of their political party) on policy issues. Few Mps have the expert knowledge
necessary effectively to scrutinise highly technical legislation. It has therefore been
considered that it is wise to leave such legislation to be made by the appropriate
Minister after consultation with those possessing the expertise in the field and other
interested parties. This procedure also avoids Acts of parliament becoming a mass of
highly complex and unintelligible detail.

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- Dealing with Emergency Situations: In times of war or other emergency the

Government may need to act quickly and in excess of its normal powers. It is most
improbable that in such circumstances an Act of parliament could be passed in a short
enough time to provide the response needed to control an outbreak of violence, which
could for example imperil the life of the nation. Thus, the President of the Republic is
empowered by emergency Act to promulgate such regulations as would be needed
whenever a state of emergency is in force.

3.3.3 Control over Subsidiary Legislation

The controls are of three types: Ministerial, Parliamentary and Judicial.

[NB: Pre-drafting consultation can be very time-consuming].

3.3.3.1 Ministerial Control

Section 21 IGCA (Interpretation and General Clauses Act) provides that where a subsidiary
enactment is made by a person, other than the President of the Republic or a Judge of the
Supreme Court, it shall, unless the enactment under which it is made expressly otherwise
provides, be approved by the Minister before it is published in the Gazette.

This statutory requirement thus makes it possible for the Minister to exercise some form of
control over the desirability for the proposed piece of subsidiary legislation and its tenor.

3.3.3.2 Parliamentary Control

While the framers of the Constitution provided for parliamentary control over certain
subordinate legislation (section 122 of the Constitution), Parliament has extended in the IGCA

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the extent of this control.

Section 122 of the Constitution provides that all laws, other than Acts of Parliament, that make
provision for the deprivation of an individual's personal liberty or for restrictions on a person's
freedom of movement or that establish new criminal offences or impose new penalties shall be
laid before the National Assembly as soon as is practicable after they are made, and any such
law may be revoked by the Assembly by resolution passed within 30 days after it is laid before
the Assembly.

By virtue of section 20(2) IGCA, every subsidiary enactment is to be laid on the Table of the
Assembly not later than the second sitting of the Assembly after the publication of the
subsidiary enactment. It is to be noted that, according to section 20(3) IGCA, no subsidiary
enactment may be amended by the Assembly. The Assembly has power to disallow any
subsidiary enactment (section 20(3) IGCA), other than a Proclamation, on motion made to that
effect, by resolution passed within 30 days after the subsidiary enactment is laid before the
Assembly. Where a subsidiary enactment has been disallowed, the Attorney General shall give
notice of the disallowance by regulations and the subsidiary enactment shall cease to have
effect from the date of the publication of the regulations (section 20(4) IGCA).

Note that Parliament may, when conferring law-making power, relieve a statutory body of this
obligation by enacting that, notwithstanding the provisions of IGCA, regulations shall not be
required to be laid before the Assembly. Eg section 22(a) of the University of Mauritius Act is
to that effect. Statutes made by the Council of the University are not subject to parliamentary
control.

3.3.3.3 Judicial Control over Subsidiary Legislation

Subsidiary legislation may be reviewed by the courts and, where appropriate, may be declared
invalid.

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The Ultra Vires Doctrine: A statutory instrument may be challenged in the courts on the
grounds that it is ultra vires; that is, it exceeds the prescribed limits or it has been made without
due compliance with the correct procedure. If such is the case, the court declares the statutory
instrument to be void.

Note that section 23(a) IGCA provides that where an enactment confers power on any person
to make a subsidiary enactment, if the subsidiary enactment purports to be made in exercise of
a particular power, it shall also be deemed to be made in exercise of every other enabling
power. According to section 23(c) IGCA where an enactment confers power on any person to
make a subsidiary enactment for a general purpose and also for a special purpose, the special
purpose shall not derogate from the generality of the power conferred by the general provision.

In Commissioners of Customs and Excise v. Cure & Deeley Ltd (1962) 1 QB 340, the
question arose whether the Commissioners had acted within their powers under the Finance
(No. 2) Act 1940, which empowered them to make regulations providing 'for any matter for
which provision appears to them necessary for the purpose of giving effect to the Act', when
they had made a regulation under which they would determine the amount of tax due from the
tax payer in the event of a tax return being submitted late. The High Court invalidated the
regulations, inter alia, on the grounds that the Commissioners were only empowered to collect
the amount of tax due, not the amount they thought fit. They had, therefore, purported to give
themselves power by way of subordinate legislation going far beyond what was envisaged by
Parliament when it passed the parent statute.

In Norton v. PSC (1985) MR 108, the Judicial Committee of the Privy Council held that the
PSC does not have the power to impose a fine as disciplinary sanction. Regulation 41(1)(h) of
PSC Regulations is ultra vires the Constitution. The Commission's powers are derived from the
Constitution. Sections 8(1) and 8(4) of the Constitution make it clear that there is no power to
fine unless a law exists which gives that power, and before a fine can be imposed the breach of
that law has to be established in the Courts.

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In Chellum v. Central Electricity Board & Mauritius Broadcasting Corporation (1992) MR 1,

the issue arose whether regulation 4 of the Central electricity Board (Mauritius Broadcasting
Corporation Collection of Licence Fees) Regulations of 1989 was intra vires section 25 of the
Central Electricity Board Act.
Justice Boolell considered:

"It is plain that under the Central Electricity Board Act or under the
Electricity Act, power is given to make regulations with regard to matters
pertaining to electricity supply and not to the licence fees... I hold therefore
that regulation 4 is ultra vires the Central Electricity Board Act. A consumer
of electricity cannot have his electricity supply cut off for failing to pay the
appropriate television licence fee."

In Municipal Council of Curepipe v. Audibert (1991) MR 173, the Supreme Court took the
view that just as a Bill voted by Parliament and assented to by the Governor General [now,
President of the Republic] cannot become law unless it is published in the gazette as a law, a
regulation, although validly made, does not acquire the force of law unless published as
provided by law, viz, in a legal supplement to the gazette. Any other form of publication
amounts, in law, to no publication at all.

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3.4 OPERATION OF LEGISLATION

3.4.1 Commencement of Legislation (Coming into Operation/Coming into

Force)

Section 46(3) of the Constitution provides that, where the President assents to a Bill that has
been submitted to him, the Bill shall become law and the President shall thereupon cause it to
be published in the Gazette as a law.

Section 46(4) of the Constitution is to the effect that no law made by Parliament shall come
into operation until it has been published in the Gazette. See in that connection section 12 of
the Interpretation and General Clauses Act (IGCA); section 13 of IGCA is to the effect that
every enactment shall come into operation on the expiration of the day before its
commencement.

Section 46(4) of the Constitution is also to the effect that Parliament may postpone the coming
into operation of any law and may make laws with retrospective effect.

But note that, according to section 10(4) of the Constitution, no person shall be held to be
guilty of a criminal offence on account of any act or omission that did not, at the time it took
place, constitute such an offence, and no penalty shall be imposed for any criminal offence that
is severer in degree or description than the maximum penalty that might have been imposed for
that offence t the time when it was committed.4

While in civil matters, Parliament may make laws with retrospective effect, the Supreme Court
has however laid down limitations to this rule. Thus in Mahboob v. Government of Mauritius

4
Thomas v. Queen (1968) MR 27; Seegobin v. R (1969) MR 1; R v. Mazar Khan Chinkan
Ali (1987) MR 162; Chinkan Ali v. R (1988) MR 226.

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(1982) MR 135, at 137, the view was taken that:

"Parliament may pass laws with a retroactive effect ... But what the Constitution does
not permit Parliament to do is to use a legal fiction as a Time Machine enabling it to
travel back into the past in order to upset stable juridical situations which it finds
existing in the present."

Retrospective legislation would not be constitutional if it were to infringe the rights guaranteed
to individuals or run counter to any other principle enshrined in the Constitution.5

Note that a subsidiary enactment may be made to come in effect retrospectively: vide section
22 IGCA and also section 20(1) IGCA. In Botte v. FUEL (1976) MR 238, the Supreme Court
pointed out that a subsidiary enactment cannot be made to come into operation retrospectively
to a date earlier than the coming into operation of the enabling enactment.

3.4.2 “Application de la Loi dans le Temps/Conflit de Lois dans le

Temps"

The issue is that of "l'application des règles juridiques nouvelles dans le temps". The problem is
whether "lorsqu'une loi nouvelle est promulguée et publiée, le juge mauricien peut-il l'appliquer
à une situation juridique qui a pris naissance antérieurement". There is a "conflit de lois dans le
temps" in so far as both "la loi ancienne" and "la loi nouvelle" can claim to apply to a given
situation; the judge will have to make a choice between 'la loi nouvelle ou la loi ancienne".

The solution differs according to whether the new legislation is criminal or not, whether it
applies to contracts or regulates extra-contractual matters.

5
Vide Nageon De Lestang v. Attorney General representing the Government of Seychelles
(1973) MR 48.

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(i) "En matière Contractuelle"

According to Article 1134 of the Code Civil Mauricien "les conventions légalement formées
tiennent lieu de loi à ceux qui les ont faites". It, therefore, follows that if a new legislation
modifies the legal regime of a category of contracts, that new legislation ("loi nouvelle") will
not apply to the "contrats en cours" as that would be contrary to the intent of the parties. The
principle is thus one of the "survie de la loi ancienne".

But where the new legislation is one "d'ordre public", there is an "effet immédiat de la loi
nouvelle"; the new legislation applies to the "contrats en cours".

(ii) "En matière Extra-Contractuelle"

a) "En Matière Pénale"

Section 10(4) of the Constitution finds its application, where legislation creates a new offence
or provides for a severer penalty.

But where the new legislation repeals an existing offence or makes it a less serious offence, by
providing for a lesser penalty, the new legislation can be made to operate retrospectively: this is
what is known as "la rétroactivité in mitius d'une loi pénale plus douce". Vide Electronic House
Ltd v. R (1974) MR 27.

Note the lack of logic behind section 17 (3) (d) and (e), and section 17 (4) IGCA.

b) "En Matière Extra-Pénale/Situation légale"

The principle is that of "l'effet immédiat de la loi nouvelle"; the new legislation will apply to the

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"situation légale".

Vide Naujeer v. Registrar of Civil Status (1991) MR 117

But note that while "toute loi nouvelle régit en principe les situations établies ou les rapports
juridiques formés dès avant sa promulgation", it must not "porte atteinte à des droits acquis
sous l'empire de la législation antérieure".

3.4.3 “Conflits de Lois dans l'instant"

This is a situation, where two contradictory rules, both in force, can claim to apply and govern
a situation.

The "antinomie juridique" is resolved by having recourse to either of the following rules:

- Specialia generabilus derogant: "les lois spéciales dérogent aux lois générales".

- Lex posterior derogat legi priori: "la loi postérieure déroge la loi antérieure".

3.5 SUGGESTED READING

Farrar, J.H. & Dugdale, A.M. Introduction to Legal Method. London: Sweet & Maxwell.

Holland, J.A. & Webb, J.S. Learning Legal Rules: A Student's Guide to Legal Method and
Reasoning. London: Blackstone.

Terré, F. Introduction Générale au Droit. Paris: Précis Dalloz.

Williams, G. Learning the Law.

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Heap, B. General Principles of English Law. London: HLT Publications.

Marty, G. & Raynaud, P. Droit Civil (T.1) Introduction Générale à l'étude du Droit. Paris:
Sirey.

Mazeaud, H. et al. Introduction à l'étude du droit, in Leçons de Droit Civil (Tome 1, Vol. 1).
Paris: Montchrestien.

Stark, Boris et al. Introduction au Droit. Paris: Litec.

Sourioux, J-L. Introduction au Droit. Paris: PUF.

Bell, J. et al.Principles of French Law. Paris: PUF. OUP

Ricci, J-C. Introduction à l'étude du Droit. Paris: Hachette.

De Geouffre de La Pradelle, G. Essai d'Introduction au Droit Français. Vol. I: Les Normes.

Nanterre: Erasme.

3.6 ACTIVITIES

1.) "The power of Parliament to make laws shall be exercisable by Bills passed by the
Assembly and assented to by the President."
[Section 46(1) of the Constitution]

(a) What are the various types of bills that can be introduced in the National
Assembly?
(b) What are the various stages a Bill must go through before it is adopted by the
National Assembly?

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(c) In which circumstances can the President of the Republic withhold assent?

2.) What is meant by 'Regional Assembly Laws'?

[See section 30 of the Rodrigues Regional Assembly Act No. 39 of 2001]

3.) (a) Section 47 of the Constitution provides that Parliament may alter the
Constitution. Analyze this section.

(b) The Government of the Republic of Ruritania, which has a Constitution

identical to that of Mauritius, contemplates to make a number of constitutional
reforms. It proposes inter alia
(i) to amend section 1 so that it can read as follows: "Ruritania shall be a
Sovereign, Secular and Democratic State known as the Popular
Republic of Ruritania";
(ii) to add a new section 13A entitled "Protection of Right to Strike";
(iii) to amend section 57(2) so that the life of the National Assembly be
extended to nine years;
(iv) to amend section 59(1) so that there shall be six Deputy Prime
Ministers.

The Government of Ruritania considers that its proposals would be supported

by 80 % of all the MPs. Advise the Government of Ruritania whether these
alterations could be effected and, if so, how?

4.) (a) (i) What is meant by Subsidiary Legislation?

(ii) What are 'Regional Assembly Regulations' about?

[See section 31 of the Rodrigues Regional Assembly Act No. 39 of 2001]

(b) What are the reasons for the existence of Subsidiary Legislation?

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5.) (a) Section 15 of the Papaya Corporation Act provides that the Papaya
Corporation Board may enact such regulations as are conducive to the
fulfillment of the objectives of the Act, viz encourage the cultivation of papayas
by planters through fiscal incentives, take such measures as are necessary,
including the enactment of severer penalties, with a view to protect papaya
plantations against acts of vandalism, and such other measures as would
promote its national consumption.

Advise the Board about the types of control to which it can be subjected when
exercising its law-making power under section 15.

(b) To what extent is there ministerial control over subsidiary legislation?

(c) What is the scope of parliamentary control over subsidiary legislation?

6.) Advise the Dream Land Local Council in which circumstances regulations passed by it
would be invalidated by the courts.

7.) "Parliament may pass laws with a retroactive effect ... But what the Constitution does
not permit Parliament to do is to use a legal fiction as a Time Machine enabling it to
travel back into the past in order to upset stable juridical situations which it finds
existing in the present."
(Per Sir Maurice Rault in Mahboob v. Government of Mauritius (1982) MR 135 at
137)

Examine, in the light of the above quote, the limitations to Parliament's power to
legislate retrospectively.
8.) Discuss how a "conflit de lois dans le temps" is resolved.

9). Mr Foupamal was, whilst driving his car on 13 September 2002, involved in a collision

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 Introduction to Law and Legal Methods – LAW 1105

with a van. He is now being prosecuted for reckless and dangerous driving.

(a) On the assumption that the maximum fine for that offence has, as a result of a
law that came into force on 1 October 2002 been increased from Rs 2000 to
Rs 10000, advise Mr Foupamal whether he may, if he pleads or is found guilty,
be ordered to pay a fine exceeding Rs 2000.

(b) On the assumption that, as a result of the law that came into force on 1
October 2002 offences of "reckless and dangerous driving" must be tried in the
Intermediate Court, advise Mr Foupamal whether he may insist that his case be
heard in the District Court where such offences were normally tried before the
new law was passed.

Unit 3 22