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Constitutional Law: A. Parliamentary Sovereignty
Constitutional Law: A. Parliamentary Sovereignty
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.
(ii) Legislature
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.
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.
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.