My Individual Assignment for the module Introduction to law and Legal methods/ The constitution of mauritius

1. Name: Tarun Kumar Cheddy
Programme: BSc. (Hons) Occupational
Safety and Health Management
Module: Introduction to law and Legal
methods (LLAW1101)
Cohort: BOSHM/17B
Due Date: 28th September 2017.

2. The concept of separation of power between the legislature, Judicature and the executive in
Mauritius is a mere fiction. Discuss. (30 marks)
The doctrine of separation of powers was presented by John Locke and the elaboration of the
doctrine was done by Baron de Montesquieu.
The conception of Separation of power requires that is no concentration of power in the hand of
one organ. But instead to prevent an abuse of power there is a division of power in the hand of
three organs, notably the executive, the legislature and the judiciary. The idea is to prevent abuse
of power. The ideas of both Locke and Montesquieu were to balance and limit the powers of the
State.
In other words, the pure doctrine of separation of power states that the same people should not be
members of both the legislative branch and the executive branch. One branch should not
interfere with the work of another. Also one branch should not exercise the functions of another.
However like in Commonwealth countries, the judiciary is normally independent, but there is
not always a clear separation between the executive and the legislative. The same principle is
applicable in Mauritius, as prescribed by section 59 of the constitution. Therefore it is clear there
is no strict separation of personnel between the executive and legislative branch of State.
Does it go against the spirit of separation of powers? The doctrine of separation of power is not
fixed or rigid constitutional doctrine and it is given expression in many different forms and made
subject to checks and balances of many kinds. In such paradigm, the overlap between the
parliament and the executive becomes a system of checks and balances and therefore it is in
line with the modified version of the doctrine of s.o.p. The idea is that the Assembly may call on
ministers, as members of the Assembly, to explain for the way in which legislation is executed.
The separation of powers provides a series of checks and balances, so that if one branch of
government overreaches its power or infringes on the rights of citizens, the other branches can
intervene. Parliaments give ministers power but the power they have is restricted to a certain way
for e.g.: The president may veto a law passed by Congress. Congress can override that veto with
a vote of two-thirds of both houses.

3. In the relationship between the Parliament and the executive, we have seen that they are
physically separate but there is an osmosis of the political personnel which is a feature of the
parliamentarian regime. Parliament is supposed to legislate and executive is supposed to execute.
Yet parliament can delegate powers to the executive (secondary legislation). For sensitive laws,
parliament will have ultimate control.
Executive and Legislature
Ministers also sit as a member of the parliament.
Secondary /Subsidiary Legislature: Parliament cannot take care of all the legislation that has
been passed, it is necessary for them to delegate some of their power to the executive.
Advantages: more speedy, time saving and more flexible.
Secondary Legislation is being made by the ministers. As a result, the minister is wearing the hat
of the executive when he is doing secondary legislation and he is not going in the hat of a
legislative.
Can the executive have an abuse of power when he is doing secondary Legislation?
No.
Parliaments has given the ministers, the main act and ask to fill certain details in term of
secondary legislation but still the minister can go against the main act .The main act is going to
act as a parameter and a safeguard. Therefore, there is no abuse of power when the executive is
doing secondary legislation. This is more as an advantage than a threat.
The tribunal form part of the executive.
The members of executive are also member of the assembly. Ministers also sit in the assembly
i.e. against the bridge of separation of power. Ministers are member of executive and they are
sitting in parliament but this is also necessary based on the principle of accountability. I mean if,
the ministers do not sit in parliament, how can you know if the government is accountable? Who
will answer their act? Because the only way they get to answer their act, will be in the
parliament, if the minister would have done something wrong or omitted something, it in in
parliament that member of the opposition would be asking the ministers question. Imagine now,
If the minister will not sit in the parliament, how will this happen?

4. So again this overlap of function plays to our advantage instead of being a threat.
Legislature (power of the president):
The president is not involved in voting. The president is part of the legislature but he cannot
influence any legislation. The bill is debated at the level of the assembly and is ultimately sent to
the president for assent but the president is not read to assent, he can make representation but the
national assembly is not bound to listen to his representation.
Therefore the president has a formalistic power. He does not have any real power as being part of
the legislative system.
The president (the head of the state) and vice president are both indirectly elected (appointed) by
the assembly for 5 year term.
Executive (The president as member of the executive):
The president does not own a real executive power. He cannot even give direction to the
ministers without the advice of the Prime Minister and whatever he is doing; he is bound to listen
to the advice of the cabinet.
The Prime Minister is appointed by the president and is responsible to the National Assembly.
The Council of Ministers is appointed by the president on the recommendation of the prime
minister.
The Council of Ministers (cabinet), responsible for the direction and control of the government,
consists of the prime minister (head of government), the leader of the majority party in the
legislature, and about 24 ministers including one Deputy Prime Minister and/or one Vice Prime
Minister.
The Executive branch being with the Cabinet have 4 most powerful executive offices, Prime
Minister, Deputy Prime Minister and 2 offices of Vice Prime Minister. They have the executive
power and authority over the cabinet and also help the Prime Minister in his tasks and
responsibilities.

5. Morally, it is unsound for Pravind Jugnauth to become PM because it appears that the shift of
power from father to son is unjust and looks very undemocratic. But, according to the country’s
constitution, the President appoints a member of the National Assembly as Prime Minister who
will have the support of the majority of members.
Pravind Jugnauth’s party is the majority in the National Assembly with 32 members.
Appointment of member of Judiciary
The chief justice is the head of the court and has precedence over any judges in the republic. The
chief justice is also fifth in the line of precedence following the president, prime minister, vice
deputy and deputy prime minister
Under the doctrine of s.o.p., the judiciary and the executive branches should be separate and their
personnel should be distinct. In Mauritius, the personnel of the Judiciary is independent and the
recruitment is done by the Judicial and Legal Service Commission (JSC) and the recruitment of
the magistrates and State Law officers is done similarly. The chief justice appointed by the
president after consultation with the prime minister; senior puisne judge appointed by the
president with the advice of the chief justice; other puisne judges appointed by the president.
One may argue that the Prime Minister, the head of the executive, has a say in the appointment
of the Chief Justice but the President who is theoretically the head of the executive, has some
important ‘constitutional powers’ but no real executive powers and has an obligation only to
consult but ultimately he can appoint the person he chooses. There is a system of check and
balances of the Judiciary over the Executive.
All judges serve until retirement at age 67
Conclusion
The power of president in the three organs is very precise and the analysis of the President’s
power is that he does not have real power which can really threaten the democracy and which
can only constitute an abuse of power
Another overlap is that, in the absence of the president and the vice president, there is the chief
Justice who tends to act as the president. This rarely occurs because when the president is not
here, the vice president is here normally.

6. The president is appointed by the prime minister and is elected by majority of vote in the
assembly
The president does not form part of the assembly but form part in the parliament.
Can Court intervene with the legislative Process ? / Can court prevent parliament to pass
the law?
Section 17 and section 3 to section 16
Because the exercise concerning legislative process is in the constitution, the court cannot
interfere/intervene with the parliament (i.e. with the debate, first and second reading; legislative
function) and the court cannot say don’t pass/legislate the law.
The court only see that if the parliament has legislate this law and after the law has already
enforced , is it a must to follow this law or is this law is not good ?
If laws have been published and enforced, only then the court can now interfere.
Under what grant can the court interfere?
Under section 17(1) and Section 83(2) the court can intervene.
Under Section 83(2) any provision of this Constitution (other than Chapter II) has been
contravened. For e.g. passing laws that affect our liberty
Primary Law
If the court (independent bodies) proves that the law is against the constitution, only then the
court can declared the law.
Other information:
 If the law is not against the constitution, the public must follow the law.
 The court cannot enter legislative process.
 If a law is anti-constitutional, the court can interfere otherwise not.
 Court can also supplement a law by way of judicial interpretation. By this way, the court can
modify the interpretation of the law.( depend on the case )
Judiciary
Mauritius has a single structured judicial system. The judiciary consists of the Supreme Court
(highest jurisdiction ) and other courts of lesser jurisdiction( subordinate court ), namely, the

7. Intermediate Court, the District Courts and the Industrial Court. Appeals from the lower courts
are heard before the Supreme Court.
If not satisfied with the decision of the supreme court, there is a right of appeal (final appeal )
from supreme court of Mauritius directly to the judicial committee of the privy council in
London.
There is also a system of check and balances of the Judiciary over the Legislative. As the
Mauritian system works under the Constitutional supremacy, the Supreme Court of Mauritius
can declare Acts of Parliament to be null and void (section 2 - This Constitution is the supreme
law of Mauritius and if any other law is inconsistent with this Constitution, that other law shall,
to the extent of the inconsistency, be void.) (Mahboob vs. Government of Mauritius – 1982 MR
135) As for Lower Courts, any unconstitutional points must be referred to the Supreme Court.
Thus, it is only the latter, including the Courts of Appeal and the Judicial Committee of the Privy
Council which can decide on unconstitutional matters.
In the case Mahboob vs. Government of Mauritius – 1982 MR 135, Justice Rault recalled: “It is
a fundamental disposition of the Constitution that there should be s.o.p. between the legislature,
the executive and the judiciary. Parliament has no more right to pronounce judgments than the
Supreme Court has right to make laws. The enactment was a usurpation of judicial power and
should be strut down”.
Legislature
According to section 45, parliament has the right to make laws. Is there any limit on parliament
as regard to law making power?
Yes. Firstly through division of power and secondly through a system of check and balance.
Now, in accordance with this concept, section 45 of the constitution provide that
‘’Subject to this Constitution, Parliament may make laws for the peace, order and good
government of Mauritius.’’

8. So ,in the first instance, it is section 45 which conferred legislative power on parliament but
when we look at section 45 itself ,section 45 provide a limitation of the law making power of
parliament as much as the power of parliament to make law in subject to this constitution.
To sum up , If we look at section 45 itself, it has a limitation because it says parliament can make
law but subject to this constitution.
Section 2 in the constitution tell us that
‘’This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this
Constitution, that other law shall, to the extent of the inconsistency, be void.’’
Therefore what I deduced from this section 2 is that the parliament can make law but it must be
still involved/conform in the constitution.
Parliament can make law but it is restricted by the limitation of the constitution.
How parliament should proceed if at a certain time the law is opposite to the constitution?
The first steps are to amend the constitution and then make the laws passed.
How can the constitution be amended?
Section 46 (2) in the constitution tell us that except for section 1 and Section 57(2), we can
amend any constitution when we get 75 % vote in the parliament.
Section 1 and section 57 (2) can be amended because it is a section of base. Even if it gets 75 %
votes, it will not be amended. Government must have 100% votes in parliament then it will be
amended.
To prevent parliament from abusing power, there are some limitation that have been put.
Order of Precedence
This is a list of precedence from the most to least powerful offices in the government:[9]
1. The President
2. The Prime Minister
3. The Vice President
4. The Deputy Prime Minister

9. 5. The Chief Justice
6. The Speaker of the National Assembly
7. The Leader of the Opposition
8. The Former Presidents
9. The Former Prime Minister
10. The Vice Prime Ministers
According to the Constitution of Mauritius there shall be a Prime Minister and a Deputy Prime
Minister who shall be appointed by the President on the advice of the Prime Minister.[2]
The Deputy Prime Minister is the first person to hold the office of Prime Minister and head of
government in case the latter is absent from Mauritius or is by reason of illness or of section
60(5) unable to perform the functions conferred on him by the Constitution.
For the time being, the doctrine of s.o.p. has yielded positive results in the Mauritian context. In
spite of the fact that all the precautions have been taken for s.o.p. to yield positive results and for
democracy to flourish, it will depend on how the wheels of history will turn and how man, called
upon to shoulder responsibilities, will act!

10. Reference:
1. https://www.lexpress.mu/idee/292396/pravind-jugnauth-mandated-be-prime-minister
2. https://www.lexpress.mu/idee/298824/it-constitutional-and-it-line-constitutionalism
3. https://thelawworldwide.wordpress.com/2015/06/06/the-mauritian-judiciary-supreme-or-
limited-by-the-constitution/
4. http://www.indexmundi.com/mauritius/judicial_branch.html
5. https://www.juristconsult.com/legal-framework/form-of-constitution/
6. http://www.ggsu.net/Resources/AS%202011/Analysis%20Framework.pdf
7. https://globaledge.msu.edu/countries/mauritius/government
8. http://allafrica.com/stories/201609290776.html
9. http://www.africanews.com/2017/01/23/son-takes-over-mauritius-prime-minister-job-from-
father-amid-criticism//
10. http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---
ilo_aids/documents/legaldocument/wcms_126778.pdf