Question 1

Discuss critically the principles of separation of powers.

Seperation of powers is a doctrine and it is meant to describe the written Constitution

of a democracy. The Constitution establishes clearly the separation of powers set
among the Legislative, the Executive and the Judiciary.

For a clear definition, the Legislative is a deliberate assembly having the authority to
make laws for the country whereas the Executive is the branch of government which
executes and enforces the law. The judiciary on its part is meant to be independent
and its role is to interprete and apply the laws set in a country.

Mauritius follows the Westminster model, thus it functions on a system of

parliamentary democracy where the Head of State is the President, who is appointed
by the National Assembly. On his part, the Prime Minister is the Head of Government
and he presides the Cabinet of Ministers.

Mauritius’ Constitution sees the role of Parliament who has the power to make laws
and functions according to Standing Orders, still as per the Westminster model.

The Judiciary is independent through the mechanism provided by the Constitution of

the Republic of Mauritius. It consists of the Supreme Court with unlimited jurisdiction
to hear all cases. Other courts of lesser jurisdiction are the Intermediate Court, the
District Court and appeals from them are heard before the Supreme Court. With an
objective of protecting fundamental rights and freedom, the Constitution makes
provision for appeals from the Supreme Court to be made to the Judicial Committee
of the United Kingdom’s Privy Council in London. This legal body sits as court of
final appeal.

The Supreme Court also stands as a court of equity. It is inspired by the Common Law
of England and Wales to apply the equitable remedies. In addition, urgent matters can
also be referred to the Judge in Chambers. All these to underline that the Constitution
is the Supreme law of Mauritius and its aim is to ensure that the fundamental rights
-which are the right to liberty and protection of the law, freedom of conscience,
freedom of association, of movement and of opinion, freedom of expression, freedom
of creed and of religious belief as well as the right to private property – are respected.
The individual rights protected in the Constitution are mainly negatively rights, as
opposed to positive rights.
In the UK, the Constitution brings about an established system for the question of
separation of powers. It is not contained in a single code. It comprises of the
Executive (Government), the Judiciary and the Legislative (Parliament and National
Assembly).

The Parliament, through its House of Commons, is central to the UK Constitution and
is elected by democratic vote whereas the House of Lords which is the upper house of
Parliament which remains unelected but can be overruled. House of Lords is today the
primary organ of the representative government.

UK is criticized on its applicability of separation of powers. The Legislature and the

Executive have a close relationship in the UK. On the other hand, the Judicial
Committee of the Privy Council – this is the highest court of appeal for certain british
territories an Commonwealth countries – remains an independent court, despite being
organizationally part of the executive.

Separation of powers in the United States is a written constitution according to which

the Legislative, Executive and Judicial branches of the US government are kept
distinct in order to prevent abuse of power. Separation of powers in the United States
is associated with a system of checks and balances.

It is the United States Congress – which comprises of two chambers, notably the
House of Representatives and the Senate – which has the sole power to make laws for
the country. Congress cannot delegate its law making responsibilities to any other
agency. Executive power of the country falls under the leadership of the President and
has the power to make treaties and appointments to office and have the laws made by
the Congress executed.

Judicial power in the United States is the power to decide and controversies. The US
Supreme Court and inferior courts established by Congress holds the judicial power
responsibility. It is the President who appoints judges under the advice and consent of
the Senate. Courts which exercise judicial power are called “constitutional courts”.

Moreover, Congress may also establish “legislative courts” which role is not to
exercise the judicial power of the United States but adjudicate public rights questions
between the government and individual and political determination.
It is clear that the Constitution under which a democracy is ruled and governed is
different from one country to another as far as the case of Mauritius, UK and US is
concerned. If for the US, the written constitution is clearer respective to the question
of separation of powers, nevertheless, a constitution remains the principles upon
which the state is based, the procedures of the laws are made and by whom. Some
constitutions, especially codified constitutions, also act as limiters of state power, by
establishing lines which a state's rulers cannot cross, such as fundamental rights.