THE MAURITIAN CONSTITUTION AS A LIVING DOCUMENT

s.b.domah

BASIC STRUCTURE

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

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

WORDING OF SECTION 2

This Constitution shall be 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. The baby and the bathwater principle. A living document The Charter of the People A Secular Constitution

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)

BILL OF RIGHTS (cont.)

FREEDOM OF CONSCIENCE (of thought/ religion, beliefs, teachings, practices etc) FREEDOM OF EXPRESSION (hold opinion, receive and impart ideas, information, 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)

BILL OF RIGHTS (cont.)

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

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

CHAPTER 3 & 4

DEALS WITH CITIZENSHIP THE OFFICE OF THE PRESIDENT AND THE VICE-PRESIDENT ORIGINALLY WE HAD THE GOVERNORGENERAL, UNIQUE TO MAURITIUS THEN

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 , 2ND & THIRD READING, ASSENT

POTENCY OF SECTION 45

(1) Subject to this Constitution, Parliament may make laws for the peace, 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.

CHAPTER 6

THE EXECUTIVE CABINET GOVERNMENT WITH A PRIME MINISTER AND THE PRESIDENT WESTMINSTER MODEL PRESIDENTS ROLE: HAS RIGHTS (A) TO ADVISE, (B) TO WARN; AND (C) TO BE CONSULTED LEADER OF OPPOSITION ATTORNEY-GENERAL

CHAPTER 6 (cont.)

OATHS BY THE MINISTERS OFFICE OF DIRECTOR OF PUBLIC PROSECUTIONS POWERS SOLE COMMISSIONER OF POLICE NO ARMY IN MAURITIUS

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

CHAPTER 10 & 11 (MISCELLANY)

INTERPRETATION OF CRUCIAL WORDS FOR EXAMPLE MAURITIUS, PUBLIC OFFICER, ETC. SAVING OF COURT JURISDICTION COMMISSIONS MAY ADOPT THEIR OWN PROCEDURE PARLIAMENT PRESERVES CONTROL OVER SUBORDINATE LEGISLATION.

FIRST SCHEDULE

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

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, STILL BEING DISCUSSED HAS A UNICAMERAL LEGISLATURE

COMMENTS (Cont. 1)

WHAT SAVED MAURITIUS? A DEMOCRATIC TRADITION, 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.)

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. Republicanism and secularism cannot be touched

Fundamental rights are not given by Constitutions but by birth which no constitution can take away

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. LET US NOT MAKE IT A BLANK PAPER BY CONSTRUCTION. - Thomas Jefferson

THE END

THANK

YOU

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

CURRENT TENDENCY

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