Democracy and Political Governance Chapter 3 199. The CSAR has a section on analysing responses to questions that deal with the performance of the judiciary. These responses showed that: (i) cases take too long to be resolved and that victims have to bear the costs of the lengthy process, “which brings about frustration and strife”; (ii) there are insufficient judges, which leads to a backlog of undecided cases; and (iii) lawyers charge excessive fees for their services. 200. The CSAR makes 10 proposals related to the objective. They include: (i) increasing the number of tribunals and courts to deal with greater numbers of cases; (ii) increasing the number of judges and magistrates; (iii) providing all magistrates and judges with opportunities for continuous training and professional development; (iv) reviewing the basis for providing legal aid; and (v) implementing the Mackay Report. ii. 201. The fact that the CSAR devotes only two short paragraphs to each of the legislature and the executive was explained by pointing out that objective 2 deals with the two arms of government at length under constitutional democracy and related matters. The CRM found this explanation helpful. 202. The basics of the constitution have remained unchanged since independence (1968), except for the establishment of a republic in 1992. This ended the period during which the queen of England was the head of state in Mauritius, represented by the governor general. The constitution has nine chapters and 122 sections (referred to as articles in some countries where sections are reserved for acts of Parliament). Chapter IV (which deals with the president and vice president, as members of the executive, in sections 28 to 30A) and Chapter VI (which deals with the executive in sections 58 to 75) both deal with the executive. The impression this creates is that the president and vice president are not members of the executive. However, section 58(1) clearly states that the “executive authority of Mauritius is vested in the President”. 203. The constitution emphasises ‘equal opportunity’ rather than ‘affirmative action’. Section 16(3) guarantees Mauritians protection from discrimination based on race, caste, place of origin, political opinion, colour, creed or sex. Affirmative action would contradict this Democracy and Political Governance section. However, the constitution recognises that equal opportunity is necessary. The Equal Opportunities Act of 2008 was therefore enacted. Its purposes were to: (i) promote equal opportunity between persons; (ii) prohibit discrimination based on status; (iii) establish an equal opportunities division in the NHRC and an equal opportunities tribunal to hear and determine complaints referred to it by the equal opportunities division; (iv) carry out other functions specified in section 35 of the act; and (v) provide for related matters. Mauritius had not implemented the act by July 2009. 204. The constitution implies rather than states that powers are separated. To appreciate the concept, one has to read the various parts of the constitution, including those that deal with the manner of appointing and removing judges. The CRM learnt that Mauritius has a vibrant press. However, whoever feels aggrieved by what the press says or writes is free to go to court and seek redress. Nevertheless, the concept of separate powers faces at least two challenges about the legislation for sentencing and section 28(2) on the appointment of the president. 205. The legislature currently tends to specify the sentences to be imposed when a law is broken. The feeling is that this interferes with the principle of separate powers. The function of the legislature is to develop laws (which should prescribe the minimum and maximum sentences), but not to prescribe sentences, which is the prerogative of the judiciary. The courts should use their discretion to decide on sentences. 206. Section 28(2)(a)(i) poses a possible challenge. It states that the president “shall be elected by the Assembly on a motion made by the Prime Minister and supported by the votes of a majority of all members of the Assembly”. The concern is whether this section contradicts the principle of separate powers. However, it was pointed out that the people elect the prime minister. He or she may therefore propose to the representatives of the people (of whom 62 of 70 are elected directly and eight indirectly in terms of the first schedule, which amplifies section 31[2]) who should be the president of the republic. It was further pointed out that, in Britain, the people do not elect the queen, but the country remains a democracy. At any rate, once he or she is elected, the Mauritian president acts on his or her own and is the ‘prime minister’s man or woman’. Former President Cassam Uteem is an example. He resigned on 15 February 2002 after refusing to sign the Prevention of Terrorism Bill (No. 1 of 2002). The reason he gave in his letter was “compelling circumstances”. Despite these reservations about, and safeguards against, the arbitrary removal of the president, Findings of the CRM The constitution, including the principle of separate powers 108 Chapter 3 109