CONSTITUTION OF MAURITIUS PDF
This Constitution is the supreme law of Mauritius and if any other law is or order of a court, whether in Mauritius or elsewhere, in respect of a criminal offence of. This Constitution was originally published as the Schedule to the Mauritius pendence Act (UK) were officially published in Mauritius in the Revised Laws of. A CRITICAL ANALYSIS OF SECTION 1 OF THE MAURITIAN CONSTITUTION THESES 32 INTRODUCTON "Mauritius shall be a sovereign democratic.
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Mauritius is a constitutional parliamentary democracy of approximately million citizens governed by a prime minister, a council of ministers, and a National. The Constitution of the Republic of Mauritius is the supreme law of Mauritius, according to . Print/export. Create a book · Download as PDF · Printable version . This Guide to Law Online Mauritius contains a selection of Mauritian legal, juridical, and governmental sources accessible Constitution.
Likewise, in Vallet v Ramgoolam 75 the Supreme Court held that an unlawful exercise of discretion under an enabling Act of Parliament in Selecting the date which has been fixed for a bye election may amount to "fault in the name of true democracy". The doctrine of severability is enshrined in Section 2 of the Constitution. The latter section proclaims that the Constitution is the supreme law of Mauritius and that if any other law is inconsistent with the Constitution, that other law shall, to the extent of the inconsistency be void.
To say that "any other law" is "void" in this sense means that it lacks legal power.
Constitution of the Republic of Mauritius 1968, as amended to 2011
In other words, the sanction is that "the other law" is deemed never to have existed at all. Having examined the structure of Section 1, we shall now pay heed to the enforcement of Section 1. B The Enforcement of Section I In this subsection we shall be mainly concerned with the scope of Section 1 with how certain principles can be implicitly created in the interpretation Of Section 1 by virtue of its enforcement. This should also make us pause to reflect on the extent to which the judge has to be active or passive in the interpretation of Section 1.
In Vallet v Ramgoolam the Supreme Court held obiter that it is for its judges to determine "in particular instances, the norms of a democratic society" Given that democracy is a universal problem 77 recourse can be made to judicial decisions of other democratic societies. Thus in the Transfer of Proceedings Relating to the laws of Alberta 78 , the Canadian Supreme Court held that democracy implies a free public opinion and the freedom of political expression.
In that case an Albertan law required an editorial to be approved by an administrative authority before it could be published. The Canadian Supreme Court held that the preamble to the British North America Act refers to democracy and that the latter cannot survive without its foundation: It was further held that only Parliament can restrain that right. As such the Canadian case shows that the enforcement of democracy as a juristic concept has the advantage of guaranteeing certain fundamental rights and freedoms irrespective of their individual holders.
On this view, within the framework of our constitution, with regard to fundamental rights and freedoms, to envisage the freedom of the press as a democratic freedom in addition to freedom of the press being treated under the rubric of freedom of the expression , would enhance the constitutional protection of the freedom of the press.
Indeed the freedom of expression, in our constitution, is entrenched as a freedom of the person As such a particular newspaper company which has juristic personality would be entitled to the constitutional protection of the freedom of expression. Durga Das Basu, ibid, pp. The importance of the freedom of political expression was also recognised in Whitney v California US where the United States Supreme Court observed: More recently in Uingens v Autriche AFDI the European Commission on Human Rights was of the opinion that it is vital in a democratic society that the principle of divergence of opinions particularly in relation to freedom of expression in political matters be recognized.
From the individualistic view point, the freedom of expression unless it is widely interpreted to englobe the freedom of the press a whole, would otherwise not englobe such a situation. On the other hand, as the Canadian case reveals, the potential dynamism in the concept of democracy englobes a free public opinion and freedom of political expression, including freedom of the press. As a matter of fact, to treat freedom of the press as a whole under the umbrella of democracy would, in effect, mean the acknowledgement of the freedom or "right" of a peopie3O in a free and democratic society to be entitled to a counter power, the press as a whole, in order to secure their political liberty.
The latter need, it is to be pointed out, is the basis of the separation of powers and by extension, of the democratic ideal. Therefore from the collectivist viewpoint, the freedom of the press is a democratic freedom par excellence. Our contention in relation to freedom of the press is not the negation of the individualistic standpoint in favour of the collectivist standpoint and vice versa but a consideration of both standpoints for a better protection of the freedom of the press.
In other words, a particular newspaper company, can as a person claim the constitutional protection of the freedom of expression under Section 12 of the constitution.
Furthermore, by virtue of the fact that the newspaper company forms part of the press as a whole, the particular newspaper company can in addition claim protection under Section 1. In the same vein, given that democracy does not only englobe political but also social and economic ideologies 81 the right to collective bargaining of trade unions can, by a purposive or activist interpretation 82 fall within the ambit of the constitutional protection of the freedom of association which includes the right of a person "to form or belong to trade unions or other associations for the protection of his interests Here again we are in the same situation as in the freedom of expression namely that these freedoms are guaranteed to the person.
However, on a line of reasoning similar to that of the freedom of the press, the right of collective bargaining of trade unions is, from the collectivist viewpoint another instance of a democratic right par excellence.
This is because in a free and democratic society, the people should have the right to associate in order to defend their interests. In other words, a particular trade union can rely on Section I in addition to Section 13 of the Constitution which protects the freedom of assembly and association.
The reference to a people in relation to democracy was made in Vallet v Ramgoolam MR see p32 footnote 84 infra. See p43 footnote infra. Apart from fundamental rights and freedoms, with regard to elections whether local government or parliamentary, democracy would englobe in relation to the citizen the right to be an elector 84 as well as the right to stand as candidate in elections Legislative and Municipal.
In relation to democracy, the conclusion reached by the Supreme Court in UDM v Governor General 85 with regard to the requirement of a deposit from candidates of local government elections, raises some difficulty. These regulations required prospective candidates in parliamentary and local government elections to pay a deposit that would be forfeited should the candidates fail to obtain a certain percentage of the votes cast.
There is nothing in our law which prevents Parliament from repealing the existing Local Government Act to provide that our local government areas shall be administered by Councils comprised solely of appointed members so that it is not possible to question the requirement of a deposit from candidates at elections for Municipal or Village Councils on the ground that it violates Section 1 of the Constitution In so doing the Supreme Court, it is respectfully submitted, did not observe a canon of constitutional interpretation, namely, to "strictly confine its pronouncement to the matter in despute" The issue in litigation was the requirement of a deposit and NOT the theoretical power of Parliament to repeal local government legislation which was not in dispute.
It is humbly submitted that in a future similar case, the Supreme Court could be invited to decide the issue on whether a deposit of that kind is or is not reasonably justifiable in a democratic society. A determination along this line avoids the difficulty raised earlier. See Vallet v Ramgoolam MR 29 at See also p33 footnote 88 No 3 infra. However the potential dynamism of a concept like democracy depends much on the judicial attitude towards it.
Section 1 constitutes a source of law which requires to be interpreted by the Supreme Court in order to bring out the juristic rule it embodies. Generally two approaches may be adopted in this process: The former approach tends to rely on the actual words or letter of Section 1.
It is prone to be restrictive in outlook and is therefore known as judicial passivity. The latter approach is inclined to rely on the underlying goal or spirit of Section 1.
It tends to be liberal in outlook and is therefore called judicial activism. Both approaches have their merits and are useful in the enforcement of the Constitution including Section 1 so long as they are viewed as means to an end which is deference to the Constitution. If in the name of that deference the judge opts for a passive approach he is inclined to declare the law with certainty and tends to abide by the canons of constitutional interpretation In the same vein, if in the name of deference to the Constitution the judge chooses to be active, he tends to give effect to the goal of the juristic rule embodied in Section 1.
His decision is prone to give meaning to the law of which it is Constitutive. Somehow, the ideal approach seems to be, if we are considering the spirit of the law, not to forget the actual words before it like in Vallet v Ramgoolam.
In that case the Supreme Court stressed the importance of giving democracy its full Some of them are as follows- "1. Do not decide a constitutional issue unless it is absolutely necessary in order to dispose of the case 2. Again the ideal approach, if we are considering the letter of the law is to remember the purpose behind it like in The Hon Attorney General v Dr the Hon N. Ramgoolam 9O where the Supreme Court considered the letter of Section 35 1 e of the Constitution and from there chose to give effect to its goal.
In Dr N Ramgoolam's case the Attorney General moved the Supreme Court for a determination, whether the seat of the respondent in the National Assembly had become vacant.
The Supreme Court held that: It was for the Speaker to decide whether the National Assembly should sit. It is for the Court to decide whether the circumstances in which the National Assembly was recalled to sit, though possibly valid for other purposes, was valid for the purposes of Section 35 1 e , bearing in mind that a mandate entrusted to a member cannot be taken away arbitrarily or unreasonably Having considered the enforcement and the structure of Section 1 in the study of the latter's supremacy, we shall now examine its alterability.
Le Mauricien, June 4, II The Alterability of Section 1 The Constitution, in its Section 47 provides for the alteration of Section I We propose to consider on the one hand the power to alter Section 1 and then, on the other hand, the procedure to alter Section 1. A The Power to alter Section 1. The power to alter Section I is defined by the Constitution in its Section 47 5.
Constitution of the Republic of Mauritius
This power is vested by its Section 47 3 in the people and its representatives. We shall, accordingly, consider in the first place the definition of that power before we look at the concept of the Sovereignty of the people. Given that Section 47 5 of the Constitution provides for and defines the power to alter Section 1, two questions immediately arise, namely: We shall therefore address our mind to these questions in the light of the possible alterations provided by Section 47 5 of the Constitution namely: We must however point out that with regard to the second question above, we shall only be interested to speculate about the materiality or immateriality of such an amendment.
Speculation about the exact consequence of such an alteration, in the abstract, is quite difficult to conceive. It is to be noted that the revocation of Section 1 can be effected with or without reenactment or the making of different provision.
Possible effect. We shall here only consider the possible effect of revoking Section 1 without re-enactment, since it is difficult, in the abstract, to conceive the effect of the making of different provision.
With regard to the effect of revoking Section 1 without re-enactment two situations can be distinguished - If the Constitutional Amendment Act repealing Section 1 nonetheless provides that Mauritius shall remain a sovereign independent State within the international community then the alteration would not make any difference save with respect to democracy see b iv infre.
This alteration can extend to inserting additional provisions in Section 1 or otherwise. However, this type of alteration is too abstract for us to comment upon.
We shall therefore only speculate about the probable effect of the alteration of part of Section 1 by way of omission or amendment of the above words. Lincoln v Governor General MR at Supreme Court where mention is made in relation to Section 47 of "a clear and explicit text". The learned judge stressed that "in the exercise of its power under Section 4 7 [that authority] may even make a new Constitution".
In this respect, we can imagine the hypothetical situation where Section 1 is amended to provide for Mauritius to become a colony or Department of France, or the United Kingdom or whatever State. Or we can imagine the alteration stipulating that Mauritius should surrender its sovereignty to a new State which will have, as territory, the Islands in the Indian Ocean including Mauritius.
Such hypothetical situations can be multiplied in the abstract. However the point is that they are legally conceivable and therefore an alteration of Section 1 along this line is indeed consequential even though it might look absurd in practical reality. In so far as this notion is concretised by Sections 58 1 and 47 3 of the Constitution 93 unless these two Sections are equally amended, the amendment in relation to Republic as a form of State might not be consequential.
However, we may wonder whether there are republican values outside the scope of the above named Sections. If so, then the alteration might be very material. It is uncertain whether the omission of the word "sovereign" would result in Mauritius ceasing to be a sovereign State. This is because for a State to exist it is implicit that the State is sovereign As a result, so long as the word "State" is not amended in Section 1, the State of Mauritius would still possess sovereignty as its attribute.
However, as we shall see in the next chapter, in as much as democracy in Section 1 has an autonomous meaning which transcends the other provisions of the Constitution, the alteration of Section 1 by omitting the word "democratic" would be material since certain democratic rights eg the right to work would no longer be guaranteed See p8, supra.
See Article 1, Montevideo Convention p7, supra. See also Jhering's Observation, p48, infra. See p48, infra. See p45, infra. Possible effect: Alternatively the termination of the suspension is equivalent to the re- enactment of Section 1. Having considered the definition as well as the possible alteration and effects in the alteration of Section 1 we shall now pay heed to the concept of the sovereignty of the people who by virtue of Section 47 3 of the Constitution wield such a power.
The concept of the sovereignty of the people is the ideological basis of modern democratic States including Mauritius. Indeed democracy is a government wherein the ultimate authority resides in the people, who, in their aggregate capacity, are sovereign It is worthwhile to note, in this context, that before the Constitutional Amendments of relating to Section 1 and relating to Section 57 2 which deal with the dissolution of Parliament and the periodicity of general elections , sovereignty in the Mauritian State was vested solely in Parliament "in conformity with well established Constitutional principles" We can say, with some confidence, that at the theoretical level, we were then following the theory of national sovereignty 99 according to which sovereignty belongs to the nation represented by Parliament the National Assembly as it is now called rather than to the people in their aggregate capacity.
Agarwal and Ors, ibid, pl The theory of national sovereignty is of French origin and was formulated by the end of the 18th century, principally by Jean Jacques Rousseau, in Le Contrat Social. The theory has been reaffirmed in the and French Constitutions.
See A Hauriou, ibid, p3l3 onwards; Debash and Ors, ibid, p37 onwards. With the and Constitutional amendments the concept of a referendum, which is a consequence of popular sovereignty, was introduced in Section 47 3 for the alteration of the most important Sections dealing with democracy namely Sections 1 and 57 2.
It follows that the constitutional framers have through these amendments attempted to reconcile national sovereignty with popular sovereignty. Though predominance has been given to the former since Section 47 3 provides for Parliament to have the last word.
Furthermore, Section 47 3 itself can be altered by Parliament , the amendments in effect marked "the end of the monopoly of the expression of the people through national representation" Having considered the power to alter Section 1 we shall now pay heed to the procedure to alter it. B The Procedure to Alter Section 1. In this subsection we propose to look at the alteration of Section 1 before we consider its alterability.
The Alteration of Section 1 is provided for by Section 47 3 of the Constitution. Basically it involves a Bill for an Act of Parliament to be submitted to a referendum of the electorate before it can be introduced in the National Assembly. A referendum is a voting procedure by which the electorate is called upon to express its will regarding a measure proposed or taken by an authority or the people.
By virtue of its subject matter, our referendum is a constituent See Debbash and Ors, ibid, p46 referendum as opposed to a Legislative referendum. Again on account of its being prescribed by the Constitution, our referendum, in procedural terms, is a mandatory referendum as opposed to an optional one which is not prescribed and in this sense is non obligatory or optional.
Given that the power of the people to participate in the decision making process is a precondition to the Bill being introduced in the National Assembly, our referendum is a consequence of popular sovereignty which in Rousseau's conception presupposes direct democracy.
However in so far as it operates within the frame-work of a representative regime indirect democracy , our referendum is a semi-direct democratic device. Two questions can arise in the present discussion-. For the present purposes, we shall be concerned with only the first question.
We propose to deal with the second question in the next Chapter since this question cannot be answered without considering the value of Section 1 which is treated in the next Chapter. With regard to the first question, the procedure laid down in Section 47 3 of the Constitution seems to render the alterability of Section 1 extremely difficult. However what is objectionable is the requirement of the unanimity of all the members of the National Assembly.
It would appear that this second step in the procedure to alter Section 1 has been introduced more as an insurmountable obstacle should the Bill ever manage to get the support of the required number of votes of the electorate.
See Chapter III. The procedure laid down in Section 47 3 , in relation to Section 1, is over rigid as it defeats its own purpose viz its alterability. It is our submission that Section 47 3 needs to be amended in order to make the alteration of Section 1 more flexible. But here we do not propose to delve into the alteration of Section 47 3 itself save to point out that Section 47 2 of the Constitution provides for Section 47 to altered by the votes of at least three quarters of the members of the National Assembly.
Indeed, a discussion on the alteration of Section 47 3 would be outside the ambit of Section 1 and certainly beyond the scope of the present dissertation. Such a discussion would be more appropriate under Section 47 of the Constitution. Having studied Section 1 from the view point of its content on the one hand and its form on the other, we shall now examine the value of Section 1 as a constitutional provision having a content and a form. This approach will enable us to gauge on the one hand its intrinsic worth I and on the other, its extrinsic worth II I The Intrinsic Worth of Section I To the enquiring mind Section 1 poses a legal conundrum: The enactment of laws by Parliament both in its constituent and legislative capacities as well as the promulgation of byelaws by the Executive, constitute an exercise of Sovereignty in the State.
Vallet v Ramgoolam explicates obiter that all enactments other than constitutional Amendments are to stand or fall by democratic standards to be determined by a competent Court of law.
This leads us to consider on the one hand, democracy as a limit imposed by the Constitution on the exercise of sovereignty in the State and on the other, the Supreme Court as promulgator of democratic standards. Our democracy is characterized by the concept of limited government and as such is a constitutional democracy i.
See also p52 footnote , infra. According to Lincoln v Governor General Supreme Court in so far as the Constitution regulates the exercise of sovereignty in the State, democracy would amount to no more than a constitutional limit "concretised by those other provisions of the Constitution". In this regard, in Khodabocus v The Electoral Commissioner and Ors , the plaintiff a registered elector and a losing candidate of the general elections held on September 15, , invoked interalia Section 1 of the constitution to ask the Court to declare the general elections null and void and to make such orders as the justice of the case may require.
An objection was raised on the ground that on the combined effect of Sections 37 1 and 5 and 83 5 of the Constitution the validity or otherwise of the election of a member of the Assembly is to be decided in the manner laid down by Parliament in the Representation of the People Act and that consequently the Supreme Court did not have any jurisdiction to entertain the plaint. The Supreme Court held that it did not have any jurisdiction in the matter.
Such are those provisions which deal with fundamental rights and freedoms of the citizens, the composition duties and functions of the Executive, and of the Legislature, the election of members of the Legislative Assembly, the duration of the Assembly, an independent Judiciary and so on and so forth Thus democracy as it has been perceived by the Supreme Court is truly a limit imposed by the Constitution on the exercise of sovereignty in the state.
Constitution of Mauritius
However the Supreme Court as the interpreter of the Constitution is also empowered "to promulgate so to speak, a charter of democratic rights enforceable before our Courts" According to Vallet the Supreme Court in relation to Section 1 has not only the power but also the duty to promulgate "standards of democracy applicable to this country" In this respect, it is to be noted that democracy has four aspects: Social democracy would relate to the removal of discrimination on grounds of "race, place of origin, political opinions, colour, creed or sex" including class and caste, while economic democracy would pertain to the right to work, leisure, fair wages, a decent standard of living and so on.
Cultural democracy assumes a particular importance in multi-racial, pluri-cultural, pluri-lingual and multi-religious societies like Mauritius. As for political democracy, the latter would include the right to vote, the right to contest elections and so forth. It is to be noted that the freedoms of expression and association enhance the exercise of these rights by rendering them more effectively. However in so far as there are democratic rights such as the right to work among others which are not concretised by the provisions of the constitution, democracy as it is embedded in Section 1, thus transcends "these other provisions of the Constitution".
It is contended in the light of Vallet, that the promulgation of "standards of democracy" in effect amounts to viewing democracy as a philosophy, whether political or socio-economic Vallet v Ramgoolam MR 29 at pp4O, for the facts see p22, supra. Vallet v Ramgoolam MR 29, at pp4O; for the facts see p22 supra. Agarwal and Ors, ibid, p According to the learned authors, "Democracy remains incomplete unless all the three aspects [social, economic and political] are present in a society".
We would also add that without the cultural aspect democracy is equally incomplete. For a general discussion see A. As a political philosophy democracy is more liable to find its expression in liberal democracies of the Western type. Such democracies are pluralistic and allow for divergence of opinions. In such societies unanimity of opinions is ex hypothesis rare so that liberal democracies have in practice been characterized by majority rule but where the minority has the right to convert itself into a majority through peaceful persuation.
As such, liberal democracies attempt to achieve a compromise between the sovereignty of the state and the freedom of the citizens. As a socioeconomic ideology, democracy is prone to manifest itself in socialist or Marxist democracies.
Such democracies seek unanimity of opinions and are characterized by the supression of classes and the gradual disappearance of conflicting opinions and interests. In socialist democracies, since there is ex hypothesis unanimity of opinions, the conduct followed by everyone would, as a result be that which he accepts and all collective decisions would therefore involve the participation of everyone.
As such Marxist democracies contemplate true freedom in the appopriation of power by all and thereby seeks to achieve the complete freedom of the citizens in the de facto equality of all men. It is only after equality has been achieved that there can be true liberty. Alternatively, liberal democracy does not negate equality. Indeed liberal democracy by proclaiming equality before the law, prones a de iure equality.
The latter is seen as one of the fundamental rights of the individual which, though not leading to a de facto equality, at least tends to create equality of opportunities or situations. In so far as both liberal and Marxist democracies recognize the power of the people demokratia they both concretize the democratic ideal.
In this respect Abraham Lincoln's oft- quoted definition of democracy: Democracy is an ambiguous concept with a wide range of meanings Vallet v Ramgoolam was alive to the problem which is further aggravated given that "The constitution provides no definition of a Democratic State' The constitution provides no definition of a democratic state.
Is it to be inferred that the notion of democracy is so well settled among the nations of the world that it may dispense with definition? One need not be a scholar in political science to know that this is not so. In Europe alone, we see totalitarian communist states, constitutional monarchies and republics all sporting the label of democratic governments despite the difference in their political outlook and methods of administration Today in , with the dismantling of totalitarian communist States in Europe, the situation envisaged in Vallet is no longer true.
However, the fact remains that there are, in the world today, communist regimes e. Nevertheless without being unmindful "of the full implications of the assumption of such a competence" the Supreme Court held that it is competent to test the validity of an enactment by reference to the concept of democracy expressly embedded in Section 1 of the Constitution.
In Khodabucus v the Electoral Commissioner and Ors , the Supreme Court observed that where Parliament has not enacted any provision pursuant to Section 37 5 of the Constitution, the Supreme Court will "assume its constitutional responsibilities to enable a qualified person to question an election by an appropriate form or process". The pronouncement of the Supreme Court in these two cases show that the Supreme Court is thereby giving effect to political democracy which is generally in line with our liberal form of democracy It is contended that, the Supreme Court may even give effect to cultural and socioeconomic democracy bearing in mind that though the socioeconomic ideology of democracy is more likely to find its expression in socialist democracies nothing, precludes social and economic ideology of democracy from being practised in liberal democracies.
However the fact remains that to posit democracy as a constitutional limitation on the exercise of sovereignty in the State must not ignore another aspect of democracy, namely, that it cannot fetter the sovereignty of the State. This is probably why in UDM v Governor General and Ors the Supreme Court pointed out that the meaning of the phrase "democratic state" in Section 1 of the constitution "may, or may not be the same as attempting to define the concept of a "democratic society" in order to discover what, for the purposes of certain Sections of Chapter II, is or is not reasonable".
That a "democratic State" is a form of state whose sovereignty is guaranteed by Section 1 is what we propose to consider in the next sub-section. SA de Smith, Mauritius: A State can only exist if there is a Supreme Will, which is capable of maintaining and enforcing order both internally and externally. The XlXth Century German jurist Jhering, once observed that a State without material power is a contradiction per se As a matter of fact by proclaiming that "Mauritius shall be a sovereign democratic State Section I recalls the constitutional prerogative of the State to change the structure of our democracy.
As a corollary to this constitutional rule, democracy as a constitutional principle cannot offend against another constitutional principle of equal status, namely the sovereignty of the State. Of constraints necessity dictates social life to create a need for order and authority. Reason and necessity combined have led social to organize itself politically into a State which would in turn possess the prerogative to freely determine the limits and modalities of the power it attributes to itself to maintain order and authority.
In modern States this prerogative is consecrated externally by public international law Article 2 1 UN Charter and internally by the Constitution With regard to the latter, in Lincoln v Governor General SC Ramphul J held that Section 1 has conferred this prerogative on an absolute and determinate authority without which there can be no real sovereignty a. Cadoux, ibid, p34 Codoux, ibid, p33 a. As the Republic of Mauritius prepares to celebrate the 50th anniversary of its Constitution in March , it is inevitable that debates and discussions around the Constitution are frequent.
The Constitution has accompanied Mauritius on its journey from an underdeveloped state to an emerging economy. The Constitution's restricted Bill of Rights and the potential for improvement to ensure a better future for the country attract the attention of many citizens and international observers.
Indeed, the Mauritian Constitution has proved to be decisive in many spheres of the political, social, cultural and economic lives of Mauritians. For instance, the 'best loser' system embodied in one of its schedules has played a major role in ensuring the political representation of racial minorities in the National Assembly in Mauritius.
The Bill of Rights again came under the spotlight with the introduction in of the new smart national identity card ID card which incorporates a citizen's fingerprints and biometric information related to his or her external characteristics.
Questions were raised on numerous human rights, and in particular on the right to privacy, considered later in the article. There was a constant fear that an ID card which contains so much personal information would prove to be too intrusive and in violation of one's right to privacy. Mr Maharajah Madhewoo, a Mauritian citizen, challenged the constitutionality of the law allowing the introduction of the smart ID card.
As a result, the Supreme Court of Mauritius had the opportunity to once again interpret the Constitution and to prove whether it is a living document or not. The article aims to critically analyse the case of Madhewoo v The State of Mauritius Madhewoo case 3 and its implications for the rights to privacy of Mauritians. It contributes towards a knowledge of the interpretation of the Bill of Rights in Mauritius and the overarching corpus of human rights in Mauritius. The introduction precedes the next section that provides for a general overview of the right to privacy in order to highlight its importance as has been done by global and regional human rights systems.
This is followed by a summary of the facts and the legal reasoning of the aforementioned case. A few words are reserved for the decision of the Judicial Committee of the Privy Council to which the case of Madhewoo went on appeal from the Mauritian Supreme Court in In the end, the implications of the Madhewoo case are analysed, providing the platform for a conclusion and some recommendations.
Privacy is regarded as a fundamental right which is essential for the autonomy and human dignity of individuals. It is a critical right since other human rights are founded on the right to privacy or its derivatives, such as the right to a private life or secrecy of the home.
It provides the foundation based for boundaries to be established to restrict who has access to one's place, things and body, as well as one's communications and information.
The right to respect privacy reflects the liberal concept of the individual as independent and self-governing, who has the freedom to enjoy and exercise all his or her rights without interfering with the rights of others. It implies that any state interference with a right that only concerns the individual - such as the right to choose a marriage partner or the number of children to have as a couple - amounts to a violation of privacy.
The right to privacy is enshrined in both the Universal Declaration of Human Rights Universal Declaration and the International Covenant on Civil and Political Rights ICCPR in the following terms, that '[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation' and that '[e]veryone has the right to protection of the law against such interference or attacks'.
The European Convention on Human Rights European Convention focuses specifically on possible limitations to the right to privacy. Article 8 provides that the authority may not interfere with this right except in accordance with the law and when it is necessary in the interests of a democratic society; in the interests of national security, public safety or economic well-being of the country; for the prevention of disorder or crime; for the protection of health and morals; or for the protection of the rights and freedoms of others.
However, article 18 emphasises the state's duty to protect the family. In direct or indirect ways, the right to privacy is provided for in numerous international instruments as well as in various constitutions around the world. The right to protection of personal data is an essential element of the right to privacy. The right to data protection normally can be inferred from the general and overarching right to privacy.
However, because of its utmost importance in a technologically-advanced world, several international and regional instruments stipulate the specific right to protection of personal data.
In Coeriel and Aurik v The Netherlands 16 it found that the right to privacy had been violated when individuals were prohibited from changing their names for religious reasons. In Toonen v Australia, 17 a blanket prohibition on homosexuality was held to be in violation of the right to privacy.
Furthermore, the state's action of dispossessing indigenous persons of their ancestral burial ground was held to be violating privacy in the case of Hopu and Bessert v France. In contrast, in the case of Van Hulst v The Netherlands 20 the Committee held that where taped conversations between a complainant and the lawyer were admitted as evidence in criminal proceedings, this did not amount to a violation of the right to privacy.
The decisions of the European Court of Human Rights European Court on the issue of privacy are diverse, which is testimony of the fact that the right to privacy is subject to interpretation and relatively wide-ranging and expansive in nature. For instance, in Huvig v France, 21 the European Court held that the tapping of telephone conversations 'not in accordance with the law' created a violation of privacy. An overview of the judicial and quasi-judicial bodies of the world reveals that the right to privacy is crucial.
This right is so important that in some cases, despite not being clearly or directly stipulated by the law - in international human rights treaties or domestic constitutions - courts have played an essential role in adjudicating that the right to privacy does exist in the formulation of other concepts, such as liberty or freedom or the right to life, by using the implied rights theory of interpretation. The Constitution of the United States of America is relevant here. The US Constitution does not expressly provide for the right to privacy.
The question whether the US Constitution confers protection of privacy in ways not explicitly mentioned in the Bill of Rights has always been a controversial matter. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.
Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is evident that the US Supreme Court has not shied away from interpreting the right to privacy from broader concepts of the US Constitution such as liberty and dignity. It moved from a position where a blatant 'no right to privacy is provided' to rules of interpretation that can be used to protect the right to privacy.
Such a stand is in contrast to the decision of the Supreme Court of Mauritius in the Madhewoo case, where the Court held that '[a]s opposed to those countries where the right to privacy or the respect for one's private life is constitutionally entrenched, in Mauritius the right to privacy is not provided for in the Constitution'.
What are the implications of the deliberation that the right to privacy is not provided for in the Constitution? An attempt is made to shed light on this important section. According to the National Identity Card Act Act , all Mauritian citizens are legally obliged to carry an identity card bearing their name, picture and signature. In the former government which changed after the general elections proposed the introduction of a new smart identity card, incorporating an individual's fingerprints and other biometric information related to their external traits and characteristics.
An amendment of the Act was required for the materialisation of the project. The project met with significant opposition and criticism from various sections of Mauritian society.
He sought redress under section 17 of the Constitution of Mauritius Constitution allowing citizens to apply to the Supreme Court in cases of violations of the provisions of sections 3 to 16 of the Bill of Rights. After the amendment, the Act stipulates in section 3 that the Registrar of Civil Status shall keep a register, electronic or otherwise, in which a citizen's particulars are recorded. Furthermore, section 3 2 enumerates these particulars as follows: The prescribed particulars in turn are provided for by the National Identity Card Particulars in Register Regulations Regulations as being fingerprints and encoded minutiae of fingerprints.
Section 4 2 c of the Act provides that every citizen within six months of attaining the age of 18 must apply for an identity card and must 'allow his fingerprints, and other biometric information about himself, to be taken and recorded'. In addition, the ID card containing biometric information of the individual must be produced by him upon request in 1 reasonable circumstances and for the purpose of ascertaining his identity; and 2 where the requestor is empowered by law to ascertain his identity.
Counsel for the plaintiff contended that the right to life subsumed the right to privacy. He based this on the famous Indian case - the Aadhaar Scheme - whereby the applicants were compelled to give iris and fingerprints as biometric information to be used in the Aadhaar cards.
Coalitions among parties are frequent. Mauritius does not maintain an active military force, although it does have a small paramilitary force that includes a coast guard unit.
Despite some unrest, the country has, on the whole, seen political success: Since independence, Mauritius, unlike most African former colonies, has sustained an open, free, democratic, and highly competitive political system. Elections have been held on a regular basis with the losing parties giving way to the winners. Its limited military structure has meant that it has been spared the difficulty of military coups.
Health, welfare, and housing Since independence Mauritius has developed a substantial social welfare system that provides free basic health services to the entire population. Care is provided through a network of hospitals, dispensaries, family-planning facilities, and social welfare centres. Old age pensions, family allowances, and other measures for social protection are also provided.
Overcrowding is prevalent in urban areas, and the government provides loans to local authorities for urban housing schemes. Education Education is compulsory between ages 5 and Six years of primary education begins at age 5, which is followed by up to seven years of secondary education. Primary and secondary education are free.
The University of Mauritius has faculties of agriculture, engineering, law and management, science, and social studies and humanities. Other institutions of higher education include the University of Technology, Mauritius Some students attend universities in India, France, and the United Kingdom.
More than four-fifths of the population is literate. Cultural life Mauritius offers a rich mixture of the many cultures and traditions of its different peoples. The arts and cultural institutions Interest in arts and letters and the sciences is promoted by voluntary associations, and the island has produced talented poets and novelists.
Perhaps the best-known local writer is Dev Virahsawmy, a poet and playwright. Though he writes easily in both French and English, Virahsawmy is most renowned for his efforts to popularize the use of Creole.
Constitution of Mauritius
The dance can be traced back to the 18th century, when it was performed by slaves. The major national cultural institutions are the Palace Theatre in Rose Hill , the Port Louis Theatre, the Mauritius Institute, which includes a natural history museum and a historical museum, and the Mauritius Archives.
There are both public and institutional libraries. Aapravasi Ghat was used as an immigration depot from — for indentured labourers arriving from India. Le Morne Cultural Landscape, comprising Le Morne Mountain and most of its foothills, was a place of refuge during the 18th and early 19th centuries for many escaped slaves, known as maroons. Another area of cultural significance is Grand Bassin Lake, where Hindus bring offerings during the Maha Shivaratree festival.
Sports and recreation There is a very active sporting culture in Mauritius.Secrecy of the ballot The voting booth provides adequate seclusion for confidentiality of voting and the voter must fold the paper so as not to reveal the vote.
The Court reiterated its settled case law that the expression 'prescribed by law' required firstly that the impugned measure should have a basis in domestic law. The first group of suspected pirates to be tried arrived in early During World War I , when sugar prices rose, the economy prospered, but the Great Depression of the s changed the situation drastically, culminating in labour unrest in This issue arose again in in the case Anicet v Camal Boudou.
See Chapter 1.
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