SEPARATION OF POWERS THE EXECUTIVE AND ITS CONTROL 1. Foundation of th Con!titution 1.1.

. The Rule of Law and the doctrine of Separation of Powers are foundation stones of the Constitution 1.2. Separation of powers is about keeping powers correctly balanced between institutions so that they are not concentrated in any one institution

2. Why should powers be balanced

B R!" #!"T$S%&'$&( When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty Again, there is no liberty if the power of Judging is not separated from the legislative and executive. If it were oined with the legislative, the life and liberty of the sub ect would be exposed to arbitrary control! for the Judge would then be the legislator. If it were to be oined to the executive power, the Judge might behave with violence and oppression. "here would be an end to everything, if the same man or same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes

". THE THREE OR#ANS OF THE STATE UNDER THE CONSTITUTION ).1. L $i!%atu& ( Parlia*ent co*posed of *e*bers of parlia*ent of both sides( +o,ern*ent and opposition. They are either si*ple *e*bers or *inisters. They pass L -S. ).2. E' (uti) ( This is +o,ern*ent and its gencies.

).). *udi(ia&+( .udges and #agistrates / They interpret Laws and ad.udicate between parties

4. The Legislature - Parliament

Parlia*ent / 01 seats 232 elected and 4 best losers5 Parlia*ent is *ade up of the *a.ority party6 alliance of parties and *inority party6 alliance parties The 7ead of that party beco*es the P# and he for*s cabinet The !pposition party or alliance of parties occupy the re*ainder of seats headed by Leader of !pposition ll Bills *ust be passed by Parlia*ent and obtain the Presidential ssent

,. Th *udi(ia&+ The branch of the State which ad.udicates on conflicts between State institutions8 between 'ndi,iduals8 between State and 'ndi,iduals 't *ust be independent fro* Parlia*ent and $9ecuti,e :udicial independence protects the liberty of the Citi;en against the $9ecuti,e Th *udi(ia&+ S (tion! -. to /0

.. Th E' (uti) The branch of the State which for*ulates policy and is responsible for its e9ecution.

The President of the Republic is the 7ead of the State The Pri*e #inister8 Cabinet and other #inisters are elected #e*bers of Parlia*ent The Ci,il Ser,ice8 local authorities8 Police and ar*ed forces8 constitute the e9ecuti,e in practical ter*s.

6.1.

Section 58 !" # $%ecuti&e authority o' (auritius - The executive authority of Mauritius is vested in the President.
S (tion 1/ 2 Th P& !id nt of th R 3u4%i( shall be the 7ead of State and Co**ander<in<Chief of the Republic of #auritius= 7e shall uphold and defend the Constitution and ensure that the institutions of de*ocracy and the rule of law are protected8 the funda*ental rights of all are respected= and the unity of the di,erse #auritian nation is *aintained and strengthened. S (tion 1/5167 7e shall be elected by the sse*bly on a *otion *ade by the Pri*e #inister and supported by the ,otes of a *a.ority of all the *e*bers of the sse*bly. S (tion 1/5"67 "o person shall be eligible for election to the office of President unless he is a citi;en of #auritius who is not less than >1 years of age and has resided in #auritius for a period of not less than ? years i**ediately preceding the election. P&i)i% $ ! and i88uniti ! and I88uniti ! of th P& !id nt7 S (tion "9A 5i67 215 Sub.ect to section 3>2?58 no ci,il or cri*inal proceedings shall lie against the President or the @ice<President in respect of the perfor*ance by hi* of the functions of his office or in respect of any act done or purported to be done by hi* in the perfor*ance of those functions.

..1.

Section )1 225( Sub.ect to section 3>2?58 no process8 warrant or su**ons shall be issued or e9ecuted against the President or the @ice<President during his ter* of office. ..". S (tion .0. E' &(i! of P& !id nt:! fun(tion!

215 'n the e9ercise of his functions under this Constitution or any other law8 the President shall act in accordance with the ad,ice of the Cabinet or of a #inister acting under the general authority of the Cabinet e9cept in cases where he is reAuired by this Constitution to act in accordance with the ad,ice of8 or after consultation with8 any person or authority other than the Cabinet or in his own deliberate .udg*ent. 225 The President *ay reAuest the Cabinet to reconsider any ad,ice tendered by it and shall act in accordance with such ad,ice as *ay be tendered by the Cabinet after such reconsideration. 2)5 -here the President so reAuests8 the Pri*e #inister shall sub*it for the consideration of the Cabinet any *atter on which a policy decision has been taken by a #inister but which has not been considered by the Cabinet. ..0. Th P&i8 ;ini!t & and th D 3ut+ P&i8 ;ini!t &

S (tion ,< 516( There shall be a Pri*e #inister and a Beputy Pri*e #inister who shall be appointed by the President.

S (tion ,< 5"6 The President8 acting in his own deliberate .udg*ent shall appoint as Pri*e #inister the *e*ber of the sse*bly who appears to hi* best able to co**and the support of the *a.ority of the *e*bers of the sse*bly8 and shall8 acting in accordance with the ad,ice of the Pri*e #inister8 appoint the Beputy Pri*e #inister8 the ttorney<+eneral and the other #inisters fro* a*ong the *e*bers of the sse*bly. Pro,ided that < 2a5 where occasion arises for *aking an appoint*ent while Parlia*ent is dissol,ed8 a person who was a *e*ber of the sse*bly i**ediately before the dissolution *ay be appointed= and 2b5 a person *ay be appointed ttorney<+eneral8 notwithstanding that he is not 2or8 as the case *ay be8 was not5 a *e*ber of the sse*bly. 3.?. S (tion .,. P& !id nt to 4 = 3t info&8 d 2 The Pri*e #inister shall keep the President fully infor*ed concerning the general conduct of the +o,ern*ent of #auritius and shall furnish the President with such infor*ation as he *ay reAuest with respect to any particular *atter relating to the +o,ern*ent of #auritius. 3.3.Th ;ini!t &!7 Section ?C 225( There shall be8 in addition to the offices of Pri*e #inister8 Beputy Pri*e #inister and ttorney<+eneral8 such other offices of #inister of the +o,ern*ent as *ay be prescribed by Parlia*ent or8 sub.ect to any law8 established by the President8 acting in accordance with the ad,ice of the Pri*e #inister( Pro,ided that the nu*ber of offices of #inister8 other than the Pri*e #inister8 shall not be *ore than 2>. 3.0. Th Ca4in t7 S (tion .1 215( There shall be a Cabinet for #auritius consisting of the Pri*e #inister and the other #inisters. Section 31 225 The functions of the Cabinet shall be to ad,ise the President in the +o,ern*ent of #auritius and the Cabinet shall be collecti,ely responsible to the sse*bly for any ad,ice gi,en to the President by or under the general authority of the Cabinet and for all things done by or under the authority of any #inister in e9ecution of his office. 3.4. S (tion .17 A!!i$n8 nt of & !3on!i4i%iti ! to ;ini!t &! 2 The President8 acting in accordance with the ad,ice of the Pri*e #inister8 *ay8 by directions in writing8 assign to the Pri*e #inister or any other #inister responsibility for the conduct 2sub.ect to this Constitution and any other law5 of any business of the +o,ern*ent8 including responsibility for the ad*inistration of any depart*ent of +o,ern*ent. ..<. S (tion .<. Atto&n +2# n &a% 215 There shall be an ttorney<+eneral who shall be principal legal ad,iser to the +o,ern*ent of #auritius. 225 The office of ttorney<+eneral shall be the office of a #inister. 2)5 "o person shall be Aualified to hold the office of ttorney<+eneral unless he is entitled to practise as a barrister in #auritius8 and8 no person who is not a *e*ber of the sse*bly shall be Aualified to hold the office if he is for any cause disAualified fro* *e*bership of the sse*bly. 2>5 -here the person holding the office of ttorney<+eneral is not a *e*ber of the sse*bly8 he shall be entitled to take part in the proceedings of the sse*bly8 and this Constitution and any other law shall apply to hi* as if he were a *e*ber of the sse*bly. Pro,ided that he shall not be entitled to ,ote in the sse*bly.

). Separation o' Powers in reality

The doctrine does not insist that there should be three institutions of go,ern*ent each operating in isolation fro* each other Co*plete separation can result in constitutional deadlock There should be checks to ensure that no institution encroaches significantly upon the function of the other

8. *i''erent +onstitutional possibilities

bsolute power in one person or body 2"! S$P R T'!"5 Power being diffused between three bodies e9ercising separate functions with no o,erlap 2P&R$5 Powers and personnel being largely8 but not totally8 separated with checks and balances in the syste* to pre,ent abuse 2*i9ed go,ern*ent and weak separation5