Constitutional Law Application in Mauritius

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.