Legislation and Legislative Process Flashcards
Introduction
Legislation is law which has been promulgated by a legislature or other governing body or the process of making it. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred to as “legislation”, while it remains under consideration to distinguish it from other business
The Constitution
Constitution is also known as supreme law – as mention in section 2 of the constitution. There it mentions about any law which is inconsistent with the constitution shall to the extent of the inconsistency be void. As mention in section 47, the parliament may, with the support of a qualified majority, amend the provisions of the constitution.
Any person who feels aggrieved that a provision of the Constitution has been infringed can apply to the Supreme Court to obtain redress. Thus in Police v. Fra (1975) MR 157 and in Vellevindron v. R (1973) MR 245 the Supreme Court struck down legislation which infringed the presumption of innocence of the accused guaranteed by section 10 of the Constitution. In UDM v. Governor General (1990) MR 118, the provision of the Legislative Assembly Elections Rules which provided for a deposit of Rs10,000 to stand as candidate was declared void as it sought to introduce a property qualification, when none was provided for by the Constitution. The Supreme Court has also invalidated legislation contravening the principle of separation of powers, which is an underlying feature of our Constitution: Mahboob v. Government of Mauritius (1982) MR 135; Noorbally v. Queen (1986) MR 204.
Primary Legislation
- Primary legislation generally consists of statutes, also known as ‘acts’, that set out broad outlines and principles, but delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act.
- These are known as Acts of Parliament.
- Section 45(1) of the Constitution confers on Parliament the power to make laws.
- Section 46(1) of the Constitution provides that the power of Parliament to make laws shall be exercisable by Bills passed by the National Assembly and assented to by the President of the Republic.
Bills of Parliament : Types
Public Bills: It relate to matters of public policy and are concerned with the national interest.
Private Bills: are concerned with particular interests or benefits of any person or persons, association or corporate body.
Private Members’ Bill: is a Public Bill which is initiated by a Member of the National Assembly, who is not a Minister, provided that the Assembly has granted leave to proceed with the Bill.
Money Bills: can only be introduced in the Assembly by a Minister. They make provision for the following purposes:
-for the imposition of taxation or the alteration of taxation otherwise than by reduction;
-for 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;
-for 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
-for the composition or remission of any debt to the
Government
Secondary Legislation
Secondary legislation (also called regulation) includes laws made by federal or provincial Order in Council by virtue of an empowering statute previously made by the parliament or legislature.
The Legislative Process: The preliminary stage
Normally the public bills are prepared or written by the ministries, it is a law that is created to reflect the idea of the ministers. In September 2000, the new government voted, for a while the board of investment bill. Most of the time, other bill are ‘amendment bill’ that is used often prompted by the senior civil servant who directly or indirectly, through junior staff.
-There are various stages through which the Bill must go through before it is adopted by the National Assembly.
The Legislative Process: First reading
-It is a formal procedure whereby motion is made that
the Bill be read for the first time; the Clerk of the National Assembly reads the short title of the Bill and a date for the second reading is set; there is no debate
at this stage.1
-Mauritius has an unicameral system of parliament that means it has only one house of parliament. Whereas, in United Kingdom it is a bi-cameral system of parliament. For e.g: there are the House of Lords and the House of Commons. The first reading is known when the bill is being introduced for the first time.
Second reading:
- After a motion has been made that the Bill be read for a second time, a general debate on the philosophy and the broad principles of the Bill follows. The Opposition can give notice during the Second Reading of an amendment it proposes to make at the Committee Stage; no amendment of the clauses is possible at this stage. A vote is taken at the end of the debates.1
- There is a formal motion for the second reading, following that motion, a debate will follow. For the second reading, the speaker, after consultation with the chief whip of the political parties. The speakers debate on the general principle and amendments that is the speech should not be irrelevant.
Committee Stage:
- The Bill is examined clause by clause; amendments are considered; generally by a Committee of the Whole House.1
- After the debate, the bill stands is sent committed to a ‘committee’ of the whole assembly. The amendments which ultimately may be either accepted or rejected, may be suggested.
Report Stage:
Here the bill that has been amended during the committee stage is reviewed. All members of parliament have an opportunity to speak and vote at this stage.
Third Reading:
To review the Bill in its final form after amendments have been made and accepted at the Committee Stage; a debate is possible (rare in Mauritius) but it is restricted to the contents of the Bill and Members cannot include references to what they would have liked to have seen in the Bill.
*The third reading is the fact when it has already passed by the committee or a select committee. The first meeting may also be postponed.
-Withdrawal of Bills: Motion can be made by the Member in charge of the Bill at any stage of the
proceedings.
-Certificate of Urgency: The Prime Minister can deliver a Certificate of Urgency to a Bill if he is of opinion that there is a pressing and urgent need for the Assembly to pass such a Bill; a Bill certified as urgent can pass all its various stages in one day.
Voting Procedure:
The Bill must finally be voted and the quorum will depend on the type of bill. *By the virtue of section 53 of the constitution, the bill, just as other ordinary motions, should be voted by a majority of members of the parliament present. -For Ordinary Bills = s53(1) Constitution: A simple majority of Members present and voting is required to pass an ordinary piece of Legislation [Note that the quorum for holding sittings of the national Assembly is 17, in addition to the person presiding: section 52(1)] -For Bills amending the Constitution = S47 Constitution: A qualified majority is required depending on the sections of the Constitution that the amendment relates to. Section 47(2) of the Constitution: Amendment of certain provisions of the Constitution [(a) this section; (b) sections 28-31, 37-46, 56-58 other than 57(2), 64, 65, 71, 72, and 108; (c) Chapters II, VII, VIII and IX; the First Schedule; (d) Chapter XI, to the extent that it relates to any of the provisions specified in paragraphs (a) to (d)] requires the support at final voting of the votes of not less than 3/4 of all the members of the Assembly. Section 47(3): Amendment of section 1 or Section 57(2). The proposed Bill has before its introduction in the Assembly been submitted by referendum to the electorate of Mauritius and has been approved by the votes of not less than three quarters of the electorate, and it is supported at final voting by the votes of all the members of the Assembly. But note that this very subsection can be amended by the votes of 3/4 of all the MPs [section 47(2)(a)]. Section 47(4): Amendment of the provisions of the Constitution, other than those mentioned in subsection (2), require the support at final voting of not less than 2/3 of the votes of all the Members of the Assembly.
The Presidential Assent:
The Assent of the President is necessary before a Bill becomes an Act of Parliament.
*After the final vote during the third reading the bill is sent to the president of the Republic for his assent. When the president assents to the bill, the bill becomes a law, but is not yet operational.
-Withholding of Assent: According to section 46(2)(b), the President cannot withhold assent.
in the case of money bills (s54 Constitution), and bills amending the Constitution (which has been certified by the Speaker of the Assembly as having complied with the requirements of section 47).
For any other Bill, unless in his own deliberate judgment, he considers a Bill should be reconsidered by the Assembly. If he does withhold assent here, he will have return the Bill to the Assembly with a request to reconsider the Bill, including any proposed
amendment thereto, within 21 days of the submission for assent [s46(2)(c)]. Where a Bill has been reconsidered by the Assembly and is passed again with or without amendment, the President shall signify his assent [46(2)(d)].
Publication in the Government
Gazette:
As mentioned in section 46(4) of the constitution, the law will become operational when it has been published in the Government Gazette.
S 46(4) of the Constitution: no law made by Parliament shall come into operation until it has been published in the Gazette (Even though parliament can postpone the coming into operation of any such law).
S 13 of IGCA: every enactment shall come into operation on the expiration of the day before its commencement.
S46(4) Constitution: Parliament may make laws with retroactive effect.
(i)Civil matters: Parliament may make laws with
retrospective effect, the Supreme Court has however laid down limitations to this rule.
Mahboob v. Government of Mauritius (1982) MR 135: “Parliament may pass laws with a retroactive effect … But what the Constitution does not permit Parliament to do is to use a legal fiction as a Time Machine enabling it to travel back into the past in order to upset stable
juridical situations which it finds existing in the present.”
(ii) However for Criminal Matters: S10(4) Constitution provides that 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 the time when it was committed.
Secondary or Delegated Legislation ( miss)
-Rules/Regulations made under an Act of Parliament (the enabling Act).
-Parliament may by Act delegate its legislative powers on particular matters.
-Secondary Legislation = those Rules or Regulations enacted by ministers, local councils or public authorities to whom law-making power has been delegated.
-For the Financial Services Commission (FSC) for instance, it has a number of enabling Acts of Parliament including the Financial Services Act 2007 and the
Insurance Act 2005.
-However the FSC has enacted a number of rules and regulations under those enabling Acts, for example the The Financial Services (Administrative Penalties) Rules 2013 and plenty more.
-Rules and Regulations made under Section 118 & 120 of the Constitution [Legislative power entrusted by the Constitution]: Section 118 of the Constitution empowers Commissions and Tribunals established under the
Constitution with the power to make by-laws. The Public Service Commission (PSC) and the Discipline Forces Service Commission (DFSC) are therefore entrusted by the Constitution with the power, by regulations, to make provision for regulating and facilitating the performance of their functions under the Constitution.
-Power under s120 to make any order, regulation or rule, shall be construed as including the power, exercisable in like manner, to amend or revoke any such order, regulation or rule.
-Publication of subsidiary legislation in the Government Gazette:
-S12 IGCA: every subsidiary enactment shall be published in a legal supplement to the Gazette.
-S23(b) IGCA: where an enactment confers power on any person to make a subsidiary enactment, the subsidiary enactment may be amended in the same manner by and in which it was made by the same person or by any other person on whom the enactment may confer the power to make the subsidiary enactment.
