Democracy and Political Governance Chapter 3 Objective 4: Uphold the separation of powers, including the protection of the independence of the judiciary i. Summary of the CSAR 190. The CSAR contains an introduction and five other parts. These are: • • • • • 191. The CSAR devotes only two short paragraphs each to the legislature and the executive. The rest of the report, including recommendations, is on the judiciary. Constitutional provisions. The judicial system. A note on judicial reform. Analysis of the responses to questions about the judiciary. Proposals (essentially recommendations) related to the objective. Constitutional provisions 106 192. The CSAR points out that Mauritius has a written constitution, based on the British parliamentary system, it accepted at independence in 1968. It provides for separate powers and for the legislature, the executive and the judiciary to operate independently. The constitution proclaims that Mauritius is a democratic state. It provides for: (i) an elected National Assembly; (ii) a legislature, which exercises its powers under the authority of Parliament; (iii) an executive body that implements the policies of the government; (iv) an independent judiciary, which applies and enforces the laws of Mauritius impartially; (v) a CP; and (vi) government departments supervised by permanent secretaries. 193. The National Assembly comprises 70 members, of whom 62 are elected directly in 21 constituencies. 194. The majority party or alliance forms the government. Its leader becomes the prime minister and it selects members of the Cabinet from elected members of the National Assembly. Only the attorney general may be appointed to the executive from outside the National Assembly. The opposition party, or the alliance with most support, becomes the official opposition. The president appoints the leader of the opposition from this party or alliance. Members of the National Assembly select its speaker and deputy speaker. The CSAR notes that the functions of the National Assembly include passing laws, controlling finance and examining the actions of the government. Chapter 3 Democracy and Political Governance 195. The CSAR points out that section 58 of the constitution vests the executive authority of Mauritius in the president. The prime minister and cabinet ministers exercise executive power. The president appoints the prime minister, deputy prime minister and ministers from members of the National Assembly. The president consults the prime minister when appointing ministers. 196. The CSAR notes that section 1 of the constitution provides for separate powers. The manner in which judges are appointed (section 77) and their security of tenure (section 78) also reflect this separation. The government in power may not set aside the rulings of judges. Judges, in turn, may not pass laws or develop new legal principles and promulgate them through judgments. However, they must determine legal principles if there are no specific legal provisions that do so. They may also strike down unconstitutional laws. The judicial system, judicial reform and related matters 197. The CSAR describes the judicial structure and the appointment and review authorities. It notes that the Judicial Committee of the Privy Council of the United Kingdom is the final appeal for the overseas territories of the United Kingdom, crown dependencies and for those Commonwealth countries that have retained the right of appeal to the queen of England or, in the case of republics, to the Judicial Committee. The Supreme Court is subordinate to the Judicial Committee. It has a dual role: it hears cases from lower courts and acts as the Court of Civil Appeal and the Court of Criminal Appeal. The CSAR also describes the functions of the offices of the attorney general, the solicitor general, the director of public prosecutions (DPP), the JLSC and the Law Reform Commission. 198. The CSAR’s note on ‘judicial reform’ deals with the Presidential Commission. The Presidential Commission Act of 1997 established the commission to examine and report on the structure and operations of the judicial system and legal professions of Mauritius. Lord Mackay of Clashfern (whose report is called the Mackay Report of 1998) chaired the commission. The commission made a series of recommendations about making the justice system more efficient so that it can achieve its purpose better by serving the people. One of these recommendations was that the Supreme Court be reorganised into two sections: a court of appeal section and a high court section. The latter is subdivided into five divisions: the constitutional and administrative division, the commercial division, the civil division, the criminal division and the family division. 107