The Legislative Process

Sayyad BOODHUN - September 2010

INTRODUCTION
Section 45 of the Constitution empowers Parliament to make

laws for the peace, order and good government of Mauritius.

Parliament consists of the President of the Republic and the
National Assembly. Hence, both the National Assembly and
the President of the Republic have an important role in the
law-making process of Parliament.

The only limitation to Parliament's legislative power is the

Constitution itself. If Parliament does not comply with the

Constitution when enacting laws, any aggrieved party may
seize the Supreme Court for redress.

Sayyad BOODHUN - September 2010

PRIMARY LEGISLATION
Section 46(1) of the Constitution provides that:

"The power of Parliament to make laws shall be exercisable by Bills

passed by the Assembly and assented to by the President."

Sayyad BOODHUN - September 2010

TYPES OF BILLS
Public Bills:

They are Bills which relate to matters of public policy and the
public interest.
Private Bills:

They are concerned with specific interests. They are geared

towards safeguarding the interests of particular people or class of
people.
Private Members' Bills:

They are Public Bills per se but they are initiated by a Member of
Parliament who is not a Minister. Leave of the Assembly must be
obtained before such a Bill is introduced.
Sayyad BOODHUN - September 2010

TYPES OF BILLS
Money Bills :

They can only be introduced in the Assembly by a Minister. The

purpose of such Bills is:
the imposition of taxation or the alteration of taxation otherwise than

by reduction;
the imposition of any charge upon the Consolidated Fund or other
public funds of Mauritius or the alteration of any such charge
otherwise than by reduction;
the payment, issue or withdrawal from the Consolidated Fund or
other public funds of Mauritius of any money not charged on it or any
increase in the amount of such payment, issue or withdrawal; or
the composition or remission of any debt to the Government.
Sayyad BOODHUN - September 2010

STAGES IN THE LEGISLATIVE

PROCESS

Sayyad BOODHUN - September 2010

Before being brought to the National

Assembly
Whenever important legislative changes are contemplated by

the Government in specific areas of law, a White Paper may

be prepared and the opinion of the public at large may be
sought. Of course, the outcome of those consultations will
not be binding on the Government.
The State Law Office is responsible for the drafting of Bills.

The drafting can be done by State Law Officers or this

exercise can be outsourced.
Sayyad BOODHUN - September 2010

(1)

First Reading

This is a purely formal procedure. The Bill is brought to the

cognisance of the Members of the National Assembly. No

debate takes place at this stage.
Normally, the Minister responsible for the subject-matter of

the Bill will move that the Bill be read for the first time. The
Bill is not read in toto; the Clerk of the National Assembly
simply reads the short title of the Bill.

Sayyad BOODHUN - September 2010

(2)

Second Reading

After a motion is made to the effect that the Bill be read for a

second time, Members of Parliament will hold a general

debate on the rationale and the general philosophy of the Bill.
The debates should focus on the broad principles of the Bill,
and not on details and technicalities.

Sayyad BOODHUN - September 2010

(3)

Committee Stage

A detailed examination of the Bill is carried out by a

Committee of the whole House (i.e. the National Assembly)

or, at times, by a committee of selected members (Select
Committee).

Amendments to the Bill can take place at the Committee

Stage.

Unless the committee was composed of the whole House,

the Bill, whether amended or not, is reported to the National

Assembly.

Sayyad BOODHUN - September 2010

(4)

Third Reading

The Bill is reviewed in its final form (i.e. after amendments,

if any, at the Committee Stage). Exceptionally, with the leave

of the Speaker, a debate can take place on restricted issues.
It should be noted that debates at the "Third Reading" stage

are extremely rare in Mauritius.

Sayyad BOODHUN - September 2010

(5)

Voting

For Ordinary Bills a simple majority of the members present and

voting is required.
For Bills altering the Constitution a qualified majority of all

the members is required. (See Section 47 of the Constitution)

[This is now subject to the pronouncement of the Supreme Court
in Police v. Khoyratty (2004) MR 137, which pronouncement was
approved on appeal by the Judicial Committee of the Privy
Council - State v. Khoyratty PCA No. 59 of 2004]

Sayyad BOODHUN - September 2010

Points to be noted
The Attorney-General cannot vote if he is not an elected

Member of Parliament (see S. 69 of the Constitution).

The Speaker has a casting vote whether he is a member or
not (see S. 32 and S. 53 of the Constitution).
The member who has initiated a Bill can move for its
withdrawal at any stage of the process.
The Prime Minister can deliver a Certificate of Urgency to a Bill
if he is of the opinion that there is an urgent need to pass that
Bill; the Bill would then pass through all the stages in one day.
It should be noted that the Prime Minister is expected to
make a judicious use of that power.
Sayyad BOODHUN - September 2010

The Presidential Assent

For a "Bill" to become an "Act" of Parliament, it must obtain the

Presidential Assent.
According to section 46(2)(b) of the Constitution, the President shall not
withhold his assent to a Bill when:
the Bill is a Money Bill, under section 54 of the Constitution, or
the Bill relates to a constitutional amendment and is duly certified by the

Speaker as having complied with the requirements of section 47.

In any other case, the President can withhold his assent if the Bill is being

sent to him for the first time and he is of the opinion that the Bill should be
reconsidered by the Assembly. He must send the Bill back to the Assembly
within 21 days, along with any proposed amendments.
Where a Bill is returned to the Assembly, the Assembly shall reconsider the
Bill accordingly, and where it is passed again by the Assembly with or
without amendment and submitted anew to the President for assent, the
President shall signify his assent. Hence, when a Bill is sent to him a second
time the President is bound to give his assent to the Bill.
Sayyad BOODHUN - September 2010

PUBLICATION AND
COMMENCEMENT OF LEGISLATION

Sayyad BOODHUN - September 2010

Publication in the Government Gazette

As seen above, once a Bill receives the Presidential Assent, it becomes an Act.

But this does not mean that it has the force of law. Before a law becomes
enforceable, it has to be published in the Government Gazette and its
commencement has to be fixed.

Section 46(3) of the Constitution provides:

"Where the President assents to a Bill that has been submitted to him in accordance with
this Constitution, the Bill shall become law and the President shall thereupon cause it to
be published in the Gazette as a law."
In the case of Municipality of Curepipe v Audibert (1991) SCJ 339 it was held

obiter that for an Act of Parliament to be published in the Government

Gazette "as a law", it must be published in the Legal Supplement to the
Government Gazette. The same principle applies for delegated legislation.
Subsidiary enactments must also be published in the Legal Supplement to the
Government Gazette (see s. 12 of the Interpretation and General Clauses Act).

Sayyad BOODHUN - September 2010

Publication in the Government Gazette

In the case of Audibert, the Supreme Court dismissed an appeal

against a decision of a District Court of Upper Plaines Wilhems

because the Municipal Regulations under which the respondent
was prosecuted had not been published in the Legal Supplement to
the Government Gazette, but was published by way of a General
Notice in an extraordinary copy of the Gazette. The Court had this
to say:
"... just as a Bill voted by Parliament and assented to by the
Governor-General [now, the President of the Republic] cannot become
law unless it is published in the Gazette as a law, a Regulation,
although validly made, does not acquire the force of law unless
published as provided by law viz. in a legal supplement to the Gazette.
Any other form of publication amounts, in law, to no publication at
all."

Sayyad BOODHUN - September 2010

Commencement
Section 13 of the Interpretation and General Clauses Act provides:

"every enactment, and every instrument made, granted or issued under a

power conferred by an enactment shall come into operation on the
expiration of the day before its commencement."
Some laws may have retrospective effect but however, as regards

criminal matters, section 10(4) of the Constitution provides:

"No person shall be held to be guilty of a criminal offence on account of
any act or omission that did not, at the time it took place, constitute such
an offence, and no penalty shall be imposed for any criminal offence that is
severer in degree or description than the maximum penalty that might have
been imposed for that offence at the time when it was committed"

Sayyad BOODHUN - September 2010